¶1(dissenting)—I am not in accord with the majority opinion. The judgment should be affirmed in its entirety.
¶2I do not think we should overrule Krings v. Bremerton, 22 Wn. (2d) 220, 155 P. (2d) 493, in which we decided that in operating a garbage collection and disposal system the city of Bremerton was exercising a governmental function. We followed the principle set forth in Hagerman v. Seattle, 189 Wash. 694, 66 P. (2d) 1152, 110 A. L. R. 1110, to the effect that an activity of a city facilitating an expeditious administration of health service was a governmental function. In the latter case, we recognized that the reasons which had prompted the courts to invoke the doctrine of immunity in favor of municipal corporations when acting in a governmental capacity had been subjected to vigorous attack by writers of monographs and by comments appearing in legal periodicals, but declined to depart from the doctrine, which we considered had become so fixed as a matter of public policy that any change therein should be sought from the legislature. I am aware of no change in social or economic conditions demanding a departure by the court from a doctrine we have so thoroughly considered. I think we should adhere to the view expressed in the Hagermancase that, if there is to be a departure, it should come from the legislature.
¶3I am in accord with the view that the presumption of due care on the part of the deceased may be met and overcome by the testimony of interested as well as disinterested witnesses, and that we should not follow the contrary view expressed in Morris v. Chicago, Milwaukee, St. Paul & Pac. R. Co., 1 Wn. (2d) 587, 97 P. (2d) 119. However, Í am not will*792ing to accept the view that the presumption is not in any case to be considered by the jury. If the presumption is to be indulged in by the court when ruling upon a motion for a nonsuit or on a motion for a directed verdict, then it seems to me that the jury should likewise be entitled to make use of it in determining whether due care was exercised, as well as whether it has been met and overcome by evidence which the jury deems credible. There may be cases where, by reason of the existence of physical facts or the proof is so clear and convincing that reasonable minds may not differ, the court should hold as a matter of law the presumption has been met and overcome, but ordinarily the presumption should be considered along with all of the evidence in the case. I realize this view is contrary to much that has been said with reference to when a presumption has served its purpose, that it is not evidence of a fact but purely a conclusion and should never be placed in the scale to be weighed as evidence; but such view is the result of my study and observance of the practical operation of the presumption.
¶4We had occasion to consider the presumption of agency in those cases where an automobile belonging to one person was being driven by another in McGinn v. Kimmel, 36 Wn. (2d) 786, 221 P. (2d) 467. We decided on the authority of our cases that the presumption might be overcome by the testimony of interested as well as disinterested witnesses. We further stated that, if a presumption of fact and an inference were treated on the same basis with reference to how they might be met and overcome, much confusion would be clarified. In Carlson v. Wolski, 20 Wn. (2d) 323, 147 P. (2d) 291, we had under consideration the presumption of agency rule. We stated that the presumption or inference of fact arising from proof of ownership of an automobile may be overcome by the testimony of either interested or disinterested witnesses, but the testimony must be uncontradicted, unimpeached, clear, and convincing. We also, stated that, if the testimony was of such character and was not met by controverting evidence, the case might be determined upon a motion for a directed verdict. We then said:
¶5*793“If, on the other hand, the trial court should be of the opinion that, whatever may be the value of defendant’s evidence, it has not attained the degree and character required for the purpose of a directed verdict, the case should be submitted to the jury, to be decided by it on all the evidence then before the court.”
¶6I find myself unable to reconcile the foregoing thoughts with the idea that the presumption is out of the case just as soon as there is any testimony to the contrary. One might gather from reading the cases that, although the presumption of due care disappears when some one testifies to the contrary, nevertheless the jury may still consider the issue of due care, and if the jurors do not believe the contrary testimony a verdict may be rendered for the plaintiff. It seems to me that it would be much more satisfactory to say that the jury should be informed about the presumption just the same as it is about the presumption of innocence in a criminal case and then be allowed to determine whether the evidence to the contrary was sufficient to meet and overcome it. I find myself unable to escape the thought that a deceased person is entitled to have the presumption of due care accompany him and be considered in his favor the same as a defendant is entitled to have the presumption of innocence accompany him all through the trial and into the jury room.
¶7The whole subject of presumptions, their application and their purpose and effect, is in a state of confusion, and the more they have been considered the greater is such confusion. Presumptions usually arise out of necessity, and, if allowed to take a natural and practical course, without refinement of attempted definition, can serve a useful purpose. My views are out of step with the minds of those scholars who have done so much theorizing and whose language the courts have copied, but I have taken this opportunity in this dissent to give them brief expression. A sample of what I have in mind is the expression of a scholar who said that presumptions “may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.” However, I get some comfort from the words *794of Judge Fullerton and the fair implications therefrom in Heidelbach v. Campbell, 95 Wash. 661, 164 Pac. 247:
¶8“A presumption is an inference, affirmative or disaffirmative, of the truth of a proposition of fact which is drawn by a process of reasoning from some one or more matters of known fact. The presumption arises from a want of knowledge of the truth of the proposition. It is in the nature of evidence, and if it be known whether the given proposition is true or false, there can be no presumption because the fact is established which the presumption tends to prove or disprove.”
¶9I think the instruction given by the trial court on the subject of due care and quoted in the majority opinion was correct.