I dissent from the order denying a rehearing of this cause.
The trial court erred in refusing to give instruction No. 11, referred to in the opinion of the district court of appeal. As requested it reads as follows:
"If you believe from the evidence that the explosion was occasioned from the sudden breaking of the front axle of the car containing the said dynamite, and that the said breaking was occasioned by some hidden defect in such axle, the defendant cannot be charged with negligence, if you believe from the evidence that the defendant, at the time it received the car upon its road, carefully examined the said car and the said axle without finding any defect in said axle, and that such defect was at the time of such examination so hidden as not to be apparent to such a careful examination, then your verdict should be for the defendant."
This instruction presented the sole and entire defense to the action, and there was evidence to sustain the hypothesis upon which it was based, viz., a careful examination of the car at the time defendant received it upon its road (which was the day before the accident). The defendant had a right to invoke a finding of the jury upon this, its sole defense on the merits, and if the finding had been in its favor it was entitled to a verdict. (McCall v. Pacific Mail S. S. Co.,123 Cal. 42, [55 P. 706].) *Page 201