dissenting: If I correctly interpret the majority opinion and the inferences which necessarily must be drawn therefrom, it undertakes to modify materially the rule which has heretofore prevailed in this Court in determining the correctness of a judgment of non-suit. It is true that plaintiff is not bound by every word uttered by her witnesses and that where conflicts and inconsistencies appear they must be resolved in favor of the plaintiff. But this does not mean that we are not required to view as a whole the picture painted by plaintiff’s testimony. We only disregard the defects therein which mitigate against the plaintiff’s case. We are not permitted to blot out and wholly disregard a complete section of the picture so as to arrive at the conclusion that the plaintiff has established a cause of action. To do so would make it practically impossible to sustain any judgment of nonsuit. For instance, in cases where the plaintiff’s testimony discloses that her cause of action is barred by her own contributory negligence we would be required to overlook completely any of the testimony other than that tending to show that the defendant was negligent and that the plaintiff received injuries. The evidence of contributory negligence being adverse to her cause of action, we would be required to disregard it entirely.
The plaintiff offered the evidence of the witness Dindinger and relies upon his testimony. The plaintiff, having offered the evidence of the witness Dindinger, she thereby vouched for his truthfulness. While she could show by other witnesses that the facts were different from those testified by this witness, in some or all particulars, she could not base her case upon the suggestion that he had testified falsely, when no evidence was offered and when no witness had testified to facts in any way contradictory.
*194The plaintiff, through her testimony, including that of Dindinger, gives a complete picture of the occurrence about which she complains. While she was in the store of the defendant a customer returned an air rifle to the clerk at the gun counter, complaining that it was out of order and would not work. The clerk took the precaution to dismantle the gun for the purpose of unloading it. He looked in the cylinder and ascertained that there was no shot therein. He then emptied the shot out of the magazine and reassembled the gun. Then, for the purpose of testing it to see whether the air compression machinery would work, he compressed the air in the rifle and pulled the trigger. No shot came out. He again compressed the air and pulled the trigger. At this time a shot was ejected and in some manner struck the plaintiff, penetrating the lens to her left eyeglass. At the time, he had the rifle pointed upward and in an opposite direction to plaintiff. So far as I can see the explanation of the occurrence and the fact that the plaintiff was struck in the eye presents no inconsistency or contradiction which requires us to disregard any part of Dindinger’s testimony. The explanation merely composes a part of the complete picture which we must consider to determine whether there was any negligence on the part of the clerk which proximately caused injury to the plaintiff.
Furthermore, I am unable to see wherein lies the negligence. The clerk exercised every reasonable precaution to determine that the gun was hot loaded before testing it. In my opinion, to say that this evidence should be totally disregarded and that we should look only to the testimony tending to show that the rifle was fired and the physical evidence that the plaintiff was struck in the eye, takes this ease completely out of the general rule in determining when a nonsuit is proper.
Even if we concede that, notwithstanding the care exercised by the clerk to determine that the rifle was not loaded, the mere fact that he pulled the trigger when the air in the rifle was compressed constituted negligence, it would seem to me that the testimony fails to disclose that the circumstances were such that the clerk could have reasonably foreseen that under the circumstances injury was likely to occur. Having exercised precaution in unloading the rifle he exercised the further precaution to point it upward before pulling the trigger. I do not comprehend that any man of ordinary prudence could, or would, have foreseen that injury was likely to occur therefrom to some customer in the store.
It is somewhat significant that, although the plaintiff testified she was taken to a doctor immediately, she did not tender as a witness the physician who examined and treated her for the alleged injury. She offered a physician who had treated her eyes theretofore, who testified *195tbat sbe bad a deficiency of vision. Sbe likewise offered one wbo examined ber sometime thereafter, wbo testified be found no evidence of traumatic injury, and tbat if sbe suffered an injury as testified to by ber it was possible tbat it bad some effect on ber vision. Nevertheless, bis testimony as to the condition of ber left eye, which sbe alleges was injured, shows tbat it was in substantially the same condition as it was when it was treated by Dr. McCall.
After careful examination of the evidence, and the reasoning in the majority opinion, I am compelled to differ with the majority. In my opinion the judgment of nonsuit should be sustained.
Devin, J., concurs in dissent.