(dissenting) —
The man who laugh’d but once, to see an ass Mumbling to make the cross-grain’d thistles pass, Might laugh again to see a jury chaw The prickles of unpalatable law.
Dryden, The Medal. The above is apropos because of the delicate problem posed by the law in this case. The plain*216tiffs’ home was damaged through no fault of theirs and the jury in effect stated that the defendant was not liable for the damage because he was not negligent.
Initially, the jury’s verdict was that of dismissing thei complaint of the plaintiff. The law protects that verdict by requiring that the court, in deciding whether to grant a judgment notwithstanding the Verdict, view the evidence in a light most favorable to the nonmoving party and all material evidence favorable to that party must be taken as true.2 The court must be able to say as a matter of law that neither the evidence nor reasonable inferences from the evidence are sufficient to sustain the verdict.3 No element of discretion is vested in the trial court in ruling upon the motion. If there are justifiable inferences from the evidence upon which reasonable minds might reach conclusions that would sustain a verdict, then the question is for the jury, not for the court. The motion may he granted only if it can properly he said as a matter of law that there is no evidence or reasonable inference therefrom to sustain a verdict for the nonmoving party.4 Therefore, if substantial evidence supports the verdict of the jury, the verdict must stand.5
The majority opinion holds that Kaiser v. Suburban Transp. Sys., 65 Wn.2d 461, 398 P.2d 14, 401 P.2d 350 *217(1965) dictates their conclusion that the defendant was negligent as a matter of law. I respectfully dissent.
The facts are distinguishable. In Kaiser the defendant bus driver took some medication and later became drowsy, eventually losing consciousness. The doctor had failed to warn him of the possible adverse side effects. In the instant case the defendant was given some medication by his physician. Dr. Burns warned that he might become drowsy while driving, and if he did so, he was to pull over and rest until he felt better. He was not warned that he could pass out without first becoming drowsy. On his way home the defendant suddenly lost consciousness without prior drowsiness or warning of any kind. Concerning knowledge, the defendant’s testimony is further buttressed by Dr. Burns who stated that it is not possible to predict this result and that it had never happened to any of his patients before. He also testified that if he felt it would have been dangerous for the patient to drive he would have had his nurse take him home.
The majority’s opinion adopts sub silentio the rule of strict liability applied in the case of a “sleeping driver,”6 and applies it to the case of a “drugged driver” which our court in Kaiser specifically refused to do. In Kaiser at page 466, the court stated:
However, the present case is not the case of a “sleeping driver,” at least not as we must view the evidence and inferences therefrom. It is the case of a “drugged driver.” A driver who becomes suddenly stricken by an unforeseen loss of consciousness, and is unable to control the vehicle, is not chargeable with negligence. [Citations omitted.] We cannot say, as a matter of law, that the driver was negligent by falling asleep or fainting at the wheel, even in view of the premonitory systems he experienced.
The court, continuing at page 468, said:
Knowledge and conscious appreciation of the significance of facts constituting premonitor warning of sleep or inca*218pacity to the driver is essential to sustain the bus driver’s liability. The conclusion by the trial court, as a matter of law, that the driver did have warning and conscious awareness cannot stand in the face of the driver’s testimony that he did not, which is also buttressed by the medical testimony.
The majority has rested its decision to some degree on the judgment of the court which states that “in the event the jury finds that a warning of the side éffects of the drug was given to the bus driver, then the verdict shall be against the . . . driver only.” The majority concludes from that judgment of the court that any warning of side effects makes the driver guilty of negligence as a matter of law.
Knowledge or a conscious awareness of the fact that one might suddenly lose consciousness as a result of medication is required before the label “negligence” can be identified with the defendant’s actions. The majority opinion’s solution that the defendant “knew his ability to drive in a reasonable manner might be impaired” by instantaneous unconsciousness is not supported by the record. The defendant was told that he would become drowsy but never told that he would become unconscious without becoming drowsy first. There was no way for the defendant to realize that the possibility of sudden unconsciousness could take place. Therefore, there is a reasonable hypothesis upon which the jury could have concluded that the defendant had no knowledge of the possibility of sudden unconsciousness and, thus, could not be held negligent and consequently liable for the damage to the home.
Whether the defendant was negligent under these facts was clearly a question of fact for the jury. The jury decided that question in favor of the defendant. I would therefore reverse the trial court’s decision granting a judgment notwithstanding the verdict.
Carrico v. Country Store of Salem, Inc., 4 Wn. App. 567, 484 P.2d 412 (1971); Moyer v. Clark, 75 Wn.2d 800, 454 P.2d 374 (1969); Smith v. B & I Sales Co., 74 Wn.2d 151, 443 P.2d 819 (1968); Hellriegel v. Tholl, 69 Wn.2d 97, 417 P.2d 362 (1966); Meece v. Circle Bar J Boys’ Ranch, Inc., 10 Wn. App. 740, 742, 519 P.2d 1400 (1974).
Carrico v. Country Store of Salem, Inc., 4 Wn. App. 567, 484 P.2d 412 (1971); Moyer v. Clark, 75 Wn.2d 800, 454 P.2d 374 (1969); Tusnadi v. Frodle, 8 Wn. App. 239, 505 P.2d 165 (1973).
Miller v. Payless Drug Stores of Wash., Inc., 61 Wn.2d 651, 379 P.2d 932 (1963).
Grange v. Finlay, 58 Wn.2d 528, 364 P.2d 234 (1961); Carrico v. Country Store of Salem, Inc., 4 Wn. App. 567, 484 P.2d 412 (1971); Meece v. Circle Bar J Boys’ Ranch, Inc., 10 Wn. App. 740, 519 P.2d 1400 (1974).
Theisen v. Milwaukee Auto. Mut. Ins. Co., 18 Wis. 2d 91, 118 N.W.2d 140 (1962).