The opinion
On Petition for Rehearing.
( 191 Pac. 655 .)
HARRIS, J.
The plaintiffs have petitioned for a rehearing, and they earnestly contend that onr original opinion is erroneous. The trial court instructed the jury that upon proof of delivery of the canned salmon in good condition, plus proof of return of it in bad condition, the law presumed that the bad condition of the salmon was caused by the negligence of the defendant, and that therefore the plaintiffs were entitled to a verdict, “unless,” as expressed in one instruction, “the defendant shall establish by the evidence to your satisfaction that this salmon did not become wet by reason of negligence on its part,” or, as stated in another instruction, “unless defendant offers evidence which satisfies the jury that the damage was not due to its own negligence.” In our original opinion we ruled that the above-quoted portions of the court’s charge in effect instructed the jury that the defendant was required to show a negative by affirmatively showing by a preponderance of evidence a want of negligence, and that the defendant was obliged to establish such negative to the extent of satisfying the jury that defendant was free from negligence. "We held that “the most that could *223 possibly be required under our Code would be to introduce enough evidence to cause the scales to balance.”
Learned counsel for the plaintiffs earnestly argue that our ruling conflicts with Section 797, L. O. L., which reads as follows:
“A presumption, unless declared by law to be conclusive, may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption.”
It will be observed that this section does not define the meaning of the word “overcome,” and hence we must look elsewhere to ascertain the meaning of the term.
The argument made in behalf of the petitioners is that under the terms of Section 797, L. O. L., “it was not sufficient for the bailee to offer evidence equal to the presumption created by law.” The petitioners point to the fact that the word “overcome” is the controlling word in Section 797, L. O. L., and that the plaintiffs’ evidence cannot be said to be “overcome” if it is equaled or balanced.
Some text-writers take the view that it is fallacious to attribute to disputable presumptions any artificial probative force after the opponent comes forward with some evidence to contradict the presumption, and that therefore, when the opposite party contradicts a presumption with some evidence, the presumption immediately disappears’ as a rule of law, and the case goes to the jury free from any artificial rule of law: 4 Wig. on Ev., § 2491; 17 Am. Law Review, 894. Other text-writers and courts maintain that a disputable legal presumption is in the nature of evidence and is to be weighed as such: State v. Kelly, 22 N. D. *224 5 ( 132 N. W. 223 , Ann. Cas. 1913E, 974); 10 R. C. L. 870, 896; 22 C. J. 82.
In this jurisdiction the Code makes presumptions-a species of evidence; for Section 793, L. O. L., declares that indirect evidence is of two kinds: Inferences and presumptions. A presumption, according to Section 795, L. O. L., is a deduction which the law expressly directs to he made from particular facts: Doherty v. Hazelwood Co., 90 Or. 475, 481 ( 175 Pac. 849 , 177 Pac. 432 ). See, also, Section 868, subd. 2, L. O. L. Instead, then, of laying the presumption out. of the case the moment evidence contradicting the presumption is received, the presumption remains in the case to be considered by the jury as evidence. As already pointed out, Section 797 does not define the meaning of the term “overcome”; but other provisions of the Code make the meaning plain.
18. The Code requires that in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory the finding shall be according to the preponderance of the evidence. The plaintiffs charge the defendant with negligence; the defendant denies the charge. This is therefore the issue upon which the plaintiffs have the affirmative. The evidence is contradictory; and therefore the plaintiffs must fail, unless in the end they have sustained the affirmative by a preponderance of the evidence. If the evidence for the defendant either exceeds in weight, or equals and balances, the evidence offered by the plaintiffs, then the latter must fail, because in either event they have not proved the affirmative of the issue by a preponderance of the evidence. In other words, the evidence offered by the defendant has “overcome” the evidence offered by the plaintiffs; and when the evidence for *225 the defendant equals and balances the evidence for the plaintiffs, the defendant has just as effectively “overcome” the evidence for the plaintiffs as though the defendant’s evidence incomparably and overwhelmingly outweighed the evidence for the plaintiffs.
As pointed out in the original opinion, in some jurisdictions the defendant is required to acquit himself of negligence by a preponderance of the evidence; but we said in the original opinion, and now repeat, that we cannot give approval to that doctrine. The plaintiffs must show as an ultimate-fact. that the defendant was negligent as charged in the complaint; and it cannot be said that they have shown this alleged ultimate fact, unless the evidence preponderates in their favor, because this is the standard fixed by the legislature. The evidence cannot and does not preponderate in favor of the plaintiffs if it is evenly balanced; and therefore, if the evidence for the defendant in weight- equals the evidence for the plaintiffs, then the evidence for the plaintiffs is “overcome,” because the evidence for the defendant prevents the plaintiffs from succeeding and entitles the defendant to prevail. Proof of delivery in good condition and return in bad condition are the two facts which support the disputable presumption of negligence; and these two facts, plus the disputable presumption, make a prima facie case, and suffice for the proof of the ultimate fact of negligence, “until contradicted and overcome by other evidence”: Section 695, L. O. L.
If the presumption of negligence is not contradicted at all, the jury must find for the plaintiffs. If, however, there is contradictory evidence, it becomes a question for the jury to decide whether or not, from a consideration of the whole case, the evi *226 denee preponderates in favor of the plaintiffs; and in considering the whole case the disputable presumption raised by the law from given facts is to be treated and considered in the nature of evidence. A precedent in point is furnished by Klunk v. The Hocking Valley Ry. Co., 74 Ohio St. 125 ( 77 N. E. 752 ). In that case the trial court instructed the jury that the defendant company, to overcome a presumption of negligence raised against it by the statute, “was required to satisfy you by a preponderance of the evidence that it was not negligent”; but the appellate court ruled that the defendant “need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evi-. dence offered for that purpose counterbalances the evidence by which the prima facie case is made out or established; it need not overbalance or outweigh it.” Another apt precedent is found in Gibbs v. Farmers & Merchants’ State Bank, 123 Iowa, 736 ( 99 N. W. 703 ), where the court says:
“"When a prima facie case is made out by presumption or otherwise, in order to destroy its effect and shift the burden of producing further evidence the party denying it must produce evidence tending to negative the claim asserted to a point where, if no more testimony is given, his adversary cannot win by a preponderance of the evidence.”
See, also, Toledo etc. R. R. Co. v. Star Flouring Mills Co., 146 Fed. 953 ( 77 C. C. A. 203 ); 1 Elliott on Evidence, §§ 129, 132, 139.
19. The petitioners urge,.also, that we misunderstood the effect of the question asked the witness M. J. Canari, concerning the practice in respect of repairing leaks upon discovering them. The plaintiffs insist that the form of the question was such *227 as to refer only to the practice at the time of the trial. Of course, if the question did not refer to the practice followed by the defendant during the period covered by the bailment, it was incompetent. However, the appellant in its printed brief discussed the question on the theory that the interrogatory related to the period covered by the bailment; and one of the questions attempted to be asked by the defendant refers to the then past, and not to the then present, for the interrogatory reads thus:
“In pursuance of that practice, what was done to repair any leaks that occurred?”
An objection to the question was sustained, and thereupon the defendant offered to show “that the witness would further testify that in pursuance of the practice that any and all leaks were immediately repaired.” We adhere to the "original opinion.
The petition for a rehearing is denied.
Reversed and Remanded. Rehearing Denied.
McBride, C. J., and Benson and Burnett, JJ., concur.