CONCURRING OPINION OF
LEWIS, J.I concur in the portion of the court’s opinion which holds that the argument to the jury on the part of defendant’s counsel was justified by the record. This concurring opinion concerns the remaining specifications of error.
Defendant’s employee, Kalua, testified that, at the scene, he told the police officer: “I hit the other car because of my brakes.” However, when directly questioned on his prior experience in stopping the truck, he testified that he never before had had occasion to stop suddenly. All that was elicited was that a normal stop at the speed, of 20 to 25 miles an hour with the truck loaded as it was that day, would require 25 to 30 feet to stop the truck with good brakes. Kalua testified that he was 15 to 20 feet behind plaintiff’s car when he first tried to stop the truck. Previously he had noticed the car “moving-slow” 30 to 35 feet ahead and had eased up on the gas; he applied the brakes when he “saw the gap being closed.”
The burden was on the plaintiff to show that the defective brakes, were a proximate cause of the accident. Whether a car with adequate brakes could have been stopped in time was an essential point. Irrespective of contributory negligence, the evidence was not such as to warrant a finding of proximate causation as a matter of law.
It may be that a defendant who knowingly operates a car on the highway with defective brakes should be held responsible for an accident which he would have had the *429last clear chance of avoiding with adequate brakes, and in that situation should not be heard to invoke contributory negligence on the part of plaintiff. This proposition is advanced by some of the cases. See Prosser, Comparative Negligence, 51 Mich. L.Rev. 465, 473, note 41. But that still would leave plaintiff with the burden of proof of the facts requisite to application of the last clear chance doctrine. Annot., 159 A.L.R. 724. Thus the state of the record in respect of the ability to stop the truck with proper brakes is fatal to the contention that plaintiff’s case was established as a matter of law.
The majority apparently deem the question posed by the first sentence of the foregoing paragraph not presented in this case. While this is my view, I deem it important to note the state of the record on the point. As to the refusal of plaintiff’s Requested Instructions Nos. 19 and 20, I agree that this was not error in view of the form in which they were presented.