(dissenting) — The majority think that the evidence'was not sufficient to justify submission of this case to the jury, and that the trial court erred in granting a new trial. In effect, it is their view that the motion for judgment notwithstanding the verdict should have been granted by the trial court in the first instance. This is based upon the majority’s particular evaluation of the evidence assertedly most favorable to the plaintiff. They remand and order the case dismissed.
I agree substantially with the majority’s statement of the facts and their resume of the evidence. But when it comes to their evaluation of the facts and the evidence, I must part company abruptly.
The majority very properly point out that in considering a motion for judgment notwithstanding thé verdict, all competent evidence favorable to a plaintiff must be considered; furthermore, that if such evidence cannot be characterized as substantial, the case should not be submitted to the jury. It is also suggested that we no longer follow the “scintilla of evidence” rule in this jurisdiction. I agree that these are recognized and accepted statements of the law. A “scintilla of evidence,” or that other legal standard, “substantial evidence,” currently used for calculating or determining whether a plaintiff’s case should be submitted to a jury, cannot be related too accurately to prosaic ounces or pounds, inches or feet, or other units of recognized, precise, scientific measurement. Consequently, when we speak in terms of either weighing or measuring the evidence, the problem presented is a difficult one. The methodology involved might be described as an intellectual process involving somewhat elusive or nebulous hypotheses or standards. However, the inherent or basic question to be determined is quite simple. It is whether, as a practical matter, we think a plaintiff’s evidentiary story seems sufficiently persuasive *850or convincing to entitle him to have a jury listen and decide whether to believe him or his adversary.
In the case at bar, an evaluation of the facts and the evidence most favorable to the plaintiff points to a consideration of two propositions: (1) Whether such evidence shows that Mrs. Evans, the plaintiff, was standing in the bus loading zone at a point where she could or should have been seen by the bus driver; and (2) Whether it can be said, from such evidence, that Mrs. Evans was struck by the bus.
After stating that the carrier owes to patrons the “duty of exercising ordinary care in the operation of its vehicles,” the majority conclude that “There is nothing in the evidence, however, to show that the bus driver saw the plaintiff, or, in the exercise of reasonable care, could have seen her.” My evaluation of the evidence most favorable to the plaintiff points positively to a contrary result. Mrs. Evans testified that she was in front of the Star Clothing Store, on the corner of Second Street and Yakima Avenue; that she noticed the bus approaching; that she looked up to see which bus it was, and that it happened to be the one for which she was waiting. Other testimony in the record shows that identification of bus routes is carried only on the front end of the buses. Mrs. Evans testified positively that she saw that the particular bus was the one she intended to board; that is, the “Fairview” bus. If this fact was determined by her as she saw the bus approaching, it must be concluded from this testimony that at some time she was at a point in front of the approaching bus. As already mentioned, she positively testified that she was standing in front of the Star Clothing Store. This latter testimony would place her somewhere in, or at least closely adjacent to the loading zone. On cross-examination she was asked, in effect, whether she walked over and took a look at the front of the bus. The purpose of the question is not clear to me but apparently the thought of defense counsel here was to show that after the bus stopped, Mrs. Evans walked to the front end of the zone and looked at the bus sign. Whether Mrs. Evans was in a position in the loading zone *851where she could see the front of the bus as it approached, or whether she subsequently walked toward the front end of the zone and looked at the sign on the bus, she was in front of the bus at a point in the loading zone at some time while the bus was stopping or had stopped to take on passengers. Under either view of the matter, the bus driver could or should have seen her in the exercise of ordinary care for the safety of patrons of the bus company; or, at least, it might be said the question was one for the jury.
At one point upon cross-examination, Mrs. Evans testified that she did not know what hit her; but on direct examination she had stated positively that the bus struck her and that she remembered nothing thereafter.
The foregoing evaluation of the evidence most favorable to the plaintiff convinces me that there was substantial evidence to support her claim of negligence on the part of the bus company (hereinafter referred to as appellant), that questions were presented which should have been passed upon exclusively by the jury, and that the trial court acted quite properly in submitting the case to the jury.
One of appellant’s contentions is that physical facts negative Mrs. Evans’ claim that the bus driver was negligent. Appellant’s vice-president and superintendent testified relative to the physical dimensions of the bus involved in this case and its method of operation. This testimony tended to prove that as a bus pulls away from a loading zone, the back end projecting as it does behind the rear wheels moves about four or five inches beyond the arc described by the right rear wheel of the bus, and toward the curb; but, because of the forward motion of the bus and because the bus must turn out into traffic, should a person stand motionless in the loading zone at the loading point opposite the front door of the bus while it pulls out into the stream of traffic, the rear end of the bus would be about three or four feet away from the person at the time it passed the loading point. Mandel v. Washington Water Power Co., 83 Wash. 19, 144 Pac. 921; and DeTemple v. Schafer Bros. Logging Co., 169 Wash. 102, 13 P. (2d) 446, hold that physical facts which *852are undisputed and speak the truth with unerring certainty, must control. But, as pointed out in the instant case by the trial judge when he passed on this specific question,
“How far the rear would swing toward the curb and in what location in the loading zone the maximum of the swing would occur, were matters for the jury to determine, taking into consideration the manner of the operation of the bus, the sharpness of the left turn made, and the proximity of the bus to the curb when that turn was begun.”
These and other variable factors in the operation of a motor-bus convince me that this contention of appellant is without merit under the facts in this case.
Appellant’s assignment of error No. 4 reads:
“The court erred in refusing to receive the first verdict of the jury for defendant and in refusing to enter judgment thereon.”
Apparently, at the conclusion of the trial, the jury first returned a verdict which read:
“We, the Jury in the above entitled cause, find for the Defendant By Instruction # 8 Yakima Valley Transportation Co., Inc., A Corporation,”
Thereupon, the trial judge, after reading this verdict, asked counsel for the parties to approach the bench. Counsel for 11a Marie Evans objected to the receipt of this verdict on the ground that the verdict appeared to be based exclusively on instruction No. 8, which related to contributory negligence. The trial judge then refused to receive that verdict. He next instructed the jury that it was not necessary for their written verdict to refer to any particular instruction; that in arriving at their verdict, they should consider all of the instructions. New blank forms for a written verdict were given to the jury. The jurors retired for further deliberation. Approximately one-half hour passed. At the request of the appellant, the jury was brought back into the courtroom and the trial judge repeated his former statement as to their considering all of the instructions. He further stated that he wished to be careful that nothing he said would be taken by the jury as an indication that he was directing their verdict in any *853manner. Approximately three hours after this incident in open court, the jury returned with a second written verdict, which the trial judge received. This second written verdict read as follows:
“We, the Jury in the above entitled cause, find for the Plaintiffs, Nathan Evans and Ila Marie Evans, husband and wife, and assess the amount of recovery in the sum of Seven Hundred and Fifty Dollars ($750:00).”
Appellant contends that the trial judge erred in not receiving the first verdict. It is appellant’s contention that the words, “By Instruction # 8,” should have been regarded merely as surplusage. Rowe v. Safeway Stores, 14 Wn. (2d) 363, 128 P. (2d) 293, is cited as controlling. Admitting that the trial judge could have treated the words, “By Instruction # 8,” as surplusage, nevertheless, it was not necessary that he do so. Rem. Rev. Stat., § 360 [P.P.C. § 99-69], provides:
“If the verdict be informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may again be sent out.”
In Bino v. Veenhuizen, 141 Wash. 18, 20, 250 Pac. 450, 49 A. L. R. 1297, we have commented pertinently upon the above statute and the policy inherent therein as follows:
“Reading the above quoted section, it is apparent that the court is authorized by statute to send the jury out for further 'deliberation in cases where the verdict is informal or defective. The law does not require that this be done, but authorizes it, if in the judgment of the court it should be done.
“The purpose of the law is apparent. All too often questions arise upon the true construction of verdicts, — even those that are only informal and defective, — and appeals result. It is to the interest of clients, counsel and the courts to have verdicts returned in such form as to obviate perplexing questions arising therefrom. The trial court, out of an abundance of caution, desired to have the verdict in proper form. His action, therefore, should be commended rather than frowned upon.”
*854Without further elaboration, I conclude that the trial judge acted properly regarding the first written verdict, which he considered informal or defective.
Attention will now be given to appellant’s contention that the trial judge abused his discretion in granting Mrs. Evans a new trial. If, as appellant contends, a new trial was granted because of inadequate damages awarded to Mrs. Evans by the jury, the order of the trial judge should not be reversed on this particular point. Without setting forth Mrs. Evans’ injuries in detail, it can certainly be noted that the record amply supports the order of the trial judge in this respect.
For the reasons set forth above, it appears to me that the order appealed from should be affirmed in all respects.