Under the evidence, I think the court properly submitted to the jury the question of whether the lights on the truck were turned on immediately prior to and at the moment of collision. The plaintiff testified that he was watching the road ahead and did not see any lights. This is more than a scintilla *Page 517 of evidence. Though negative in character, it is positive and substantial concerning the existence of a fact which depended wholly upon the testimony of witnesses. The sufficiency of such evidence to take a case to the jury is discussed at length inKahaley v. Frye Bruhn, 62 Wash. 43, 113 P. 247. Judge Chadwick, speaking for the court, said, p. 46:
"Now, to reverse and remand this case, we must hold, as a matter of law, that appellant's driver did, in fact, drop his forty-pound weight; or, in other words, `securely fastened' his team within the meaning of that term as defined by the ordinance and the custom relied upon. While the circumstances tending to show a failure to do this are slight, in our judgment they are evidence, and their weight was for the jury. The eyewitnesses of the accident, who testified in support of plaintiff's case, say that they did not see any weight dragging under the wagon when the team passed. We think this was enough to carry the case to the jury upon the motion for nonsuit. Nor do we think this circumstance comes within the rule of negative testimony. If a person, seeing the accident and having an equal opportunity to observe, says that he did not see a certain thing or object, it is evidence, and the weight of it must be left to the jury, unless its character is so purely negative and the positive testimony is so plain that there can be but one conclusion drawn by the court or jury. The rule laid down in Jones on Evidence (2d ed.), 898, is:
"`But the rule that positive testimony is of greater weight than negative has some important exceptions, and it should never come in conflict with the general rule that the weight of the testimony should be left to the jury; such testimony is admissible, and, together with corroborating circumstances, may outweigh positive testimony. As will be seen from the cases already cited, this question of the weight to be given to negative testimony often arises in railroad and other accident cases where it is claimed that signals were not given. In such cases the question is purely for the jury, and it has often been held that negative evidence was sufficient to sustain a verdict. It is familiar practice to allow a witness, after he has described the situation, to state that he would have heard a bell or whistle, *Page 518 if it had sounded. The courts have frequently recognized a qualification of the general rule under discussion in those cases where one witness testifies that a fact occurred and another, having the same or better means of knowledge, testifies positively that it did not occur, each having testified as to his memory of the matter in difference.'
"And in Wigmore on Evidence, vol. 1, § 664:
"`In applying the foregoing principle requiring that the witness' inferences be based on adequate data, courts have often been asked to exclude testimony based on what may be callednegative knowledge, i.e., testimony that a fact did not occur, founded on the witness' failure to hear or see a fact which he would supposedly have heard or seen if it had occurred. But there is no inherent weakness in this kind of knowledge. It rests on the same data of the senses. It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.'"
The rule was applied in Walker v. Butterworth, 122 Wash. 412,210 P. 813, wherein Judge Mackintosh said, p. 415:
"Appellant [defendant] and other witnesses testified to the fact that the lights upon his car were burning. The testimony in contradiction to this is very dim, but we cannot say that it was not sufficient to raise a question of fact which it was the province of the jury to determine. There was one witness in whose testimony the following occurs: `Q. Did you see any lights on that dark machine? A. No, sir, no lights.' This element of negligence was properly submitted to the jury for its consideration."
And in Cox v. Polson Logging Co., ante p. 49,138 P.2d 169, Judge Steinert recognized the rule, saying, p. 69,
"In those cases, however, and in others of similar import, it was shown that the witnesses whose testimony was negative wereso situated that, in the ordinary course of events, they wouldhave taken cognizance *Page 519 of the disputed fact had it occurred, . . ." (Italics mine.)
In the instant case, plaintiff was "so situated that, in the ordinary course of events, [he] would have taken cognizance of the disputed fact had it occurred"; in other words, he was in a position to see the lights had they been on. Though looking toward the truck, he testified he did not see its lights. This, under the rule, is equivalent to positive evidence that the lights were not on. "Negative knowledge" though it is, it should not be brushed aside as a mere scintilla of evidence.
I dissent.
MILLARD, J., concurs with BLAKE, J.