¶1I dissent.
¶2The evidence shows conclusively that the plaintiff was en*630tirely faultless in what occurred, causing his personal injuries and damage to his property. The defendant ran into his automobile from the rear and there is not the slightest suggestion of negligence on the part of the plaintiff. The defendant was operating his ear with defective brakes in violation of the law. He was thereby presumptively negligent.
¶3The true test of his culpability is not whether he did all that a reasonable man should to have his mechanical brakes kept in good condition, but what he did immediately prior to the accident. By his own admission he neglected to use his hand brakes. His statement that he was too excited to use them did not absolve him from negligence. One of the tragedies of the law is that an innocent victim, one entirely without fault, is subjected to personal injury, and is without redress, as against the operator of an instrumentality put upon the highway which may because of its defective condition in the hands of the operator, cause harm to another who is entirely without fault. The instructions were admittedly erroneous, and under the circumstances of this case were prejudicial.
¶4There is authority in the second group of eases cited in the majority opinion to support a conclusion of liability in this case as a matter of law. In addition, the judgment could be reversed on the theory of Green v. General Petroleum Corp., 205 Cal. 328 [270 P. 952, 60 A.L.R. 475]. In my opinion there has been a miscarriage of justice in this case. The judgment should be reversed.