(dissenting).
I respectfully dissent.
The case at bar is limited to an action against respondent Ford Motor Company on the doctrine of strict liability of a manufacturer for injury resulting from defective products.
The vital issue in this case is whether there is any evidence to support the jury’s finding that the brake cylinder push rod bent under pressure placed on the brake pedal by Voyles in an attempt to stop his vehicle. If this fact can be determined, the jury could reasonably decide, as it did, that the push rod was defective at the time the truck was sold by the Ford Motor Company.
However, this writer cannot concur with the majority view that there is probative evidence in this record supporting the jury finding that the push rod bent as a result of pressure placed on the brake pedal immediately before the accident.
At the time co-defendant Voyles ran into the rear of the petitioners’ automobile, he was driving a two-ton Ford truck which had an empty weight of over five tons. The petitioners’ vehicle was hit by Voyles’ truck with such impact that the rear end of the vehicle was smashed under its own rear wheels. At the time of this collision the pavement was wet. A disinterested witness to the accident, put on by the petitioners, testified that as Voyles’ truck was about to hit the petitioners’ car “the left front wheel of the truck was sliding on the pavement as if the brakes had been applied.”
Voyles’ defense against petitioners’ action was that the accident was unavoidable on his part because of a defective push rod in the braking system. At trial, Voyles testified that he applied his brakes immediately before the accident, but that the truck would not stop. Voyles’ truck left no .skid marks on the pavement before the collision.
It is undisputed that after the accident the brake push rod was found bent, and that this condition would prevent the brake pedal from engaging. The push rod in question is made of steel and is approximately six inches long and slightly more than one-third inch in diameter. It was bent almost at a 90° angle, about an inch from where it connects to the brake assembly. One of Voyles’ witnesses at the trial testified that he tried to bend this rod when it was removed from the truck after the accident but was not able to do so. There is no evidence in the record about this particular rod’s malleability or tensile strength other than the testimony of the above mentioned witness as to his inability to bend it.
As the majority opinion points out, nothing was wrong with the truck after the accident except the bent push rod. However, this circumstance alone is not probative evidence of the rod’s malfunction before the accident. It is an equal possibility, indeed, perhaps a probability, that the rod was bent by the impact of the collision.
This, to my mind, is the great difficulty with the Court’s result in this case: there is simply no probative evidence indicating that the braking system was defective other than the bent rod found after the accident. It is true- that Voyles testified that the truck kept going after he applied the brakes; it is also true that this motion could equally have been the result of sliding on a slick pavement. There was testimony that this sort of sliding may leave no skid marks. Voyles’ conclusion, then, that he failed to stop before the accident because of defective brakes, is just that, a conclusion. The testimony of fact in the record about the truck’s failure to stop is limited to the fact that the truck failed to stop and the sole witnesses’ observance of the truck’s left front wheel “sliding” as if the brakes *635locked. Furthermore, if the push rod was bent by the ordinary application of the brake pedal, as described by Voyles, then it is reasonable to suppose that the rod would continue to be defective after the accident. But the service manager where the truck was repaired, Voyles’ witness, testified that he tried to bend the rod after the accident but was not able to do so. The expert testimony in the record also states that it would be impossible for a push rod of this type to be bent by pressure from the brake pedal.
This Court in reaching its result holds that: “Under the record, the malfunction of Voyles’ brakes caused the accident. There is no other explanation in this record for the cause of the accident.”
But the majority opinion in reaching this decision fails to point out any evidence that the malfunction caused the accident, other than the circumstance of the rod’s bent posture after the collision. This is, as I have stated before, to me the vexing problem in this case: was there any evidence of malfunction before the collision? The majority opinion ought to consider and squarely face this problem. Instead the Court seems to reach its holding by taking the fact that the push rod was bent after the accident, and reasoning from that fact to the conclusion of co-defendant Voyles that his brakes failed to function before the accident because of the bent push rod found after the accident.
This conclusion is to me circular reasoning based upon circumstantial evidence which at best points equally to two possibilities of causation: (1) a defective push rod or; (2) the brakes’ failure to catch on wet pavement. It has been repeatedly held in this jurisdiction that if the proven circumstances are consistent with either of two theories and there is nothing to show that one is more probable than the other, then neither theory can be taken as proven. Texas Sling Co. v. Emanuel, 431 S.W.2d 538 (Tex.Sup.1968); Continental Cas. Co. v. Fountain, 257 S.W.2d 338 (Tex.Civ.App. —Dallas 1953, writ ref’d) ; Republic National Life Insurance Co. v. Bullard, 399 S.W.2d 376 (Tex.Civ.App. — Houston 1966, writ ref’d n.r.e.). To this writer, petitioners at most contend that the failure to stop could have been caused by either of the two possibilities discussed above, and the evidence does not indicate one is more probable than the other.
The Court also notes that Cy Walker, the Ford engineer, agreed that the evidence conclusively shows that the push rod bent either when Voyles applied the brakes to avoid the collision or as a result of the collision. This writer does not know to what purpose the Court states that Walker agrees with this conclusion; but it is an unfair treatment of the record if the Court is attempting to show that Walker admitted that it was possible for the push rod to bend upon application of the brakes. Walker testified that it was not possible for a push rod of this type to bend because of application of the brake pedal. In fact, Walker only responded to the hypothetical question that the rod must have bent either immediately before the collision or as a result of the collision after much argument.
This writer does not intend by this dissent to suggest that he does not agree that the doctrine of strict liability for injury resulting from defective consumer products is sound law. The strict liability doctrine does away with the need of a plaintiff to prove negligence, and has been deemed proper policy to protect the consuming public. Rather, this dissent is only based upon the proposition that the injured party has an obligation to introduce some evidence of probative force to show that the product was defective when it left the manufacturer’s factory. This can be done by circumstantial evidence, but only when there is some indication that a defective product caused the damages. To my mind there is not such an indication in this case.
I would affirm the judgment of the Court of Civil Appeals.