Newton v. Pacific Highway Transport Co.

(dissenting) — 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 scin tilla 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 in Kahaley v. Frye & Bruhn, 62…