200 P. 83 | Cal. Ct. App. | 1921
This is the second appeal in the above-entitled action. The first appeal was heard and determined in the supreme court (
[1] (1) It may be conceded, as the plaintiff argues, that the evidence in the case may be claimed to show that the decedent could have been killed in the manner in which the plaintiff contends for. However, this contention rests on circumstantial evidence, if at all. Resting on circumstantial evidence the plaintiff's case is not sufficient merely because the circumstances proved are consistent with the plaintiff's theory; but, the circumstances must show, when weighed with the evidence opposed to them, that the circumstances relied on have more convincing force substantiating the theory contended for, and from which theory it results that the greater probability is in favor of the party upon whom the burden rests. (Wilbur v.Emergency Hospital Assn.,
(2) The uncontradicted testimony of Mr. Cotter, the superintendent, was to the effect that he did not know until after the accident that the decedent was doing the work which consisted of making certain changes in the location of some of the shafts, and, furthermore, that he had expressly forbidden the decedent to make the changes. There is other testimony in the record tending to corroborate Mr. Cotter in the foregoing testimony. There is no evidence whatever in the record tending to contradict him. In the case of Andrews v. Valley Ice Co.,
[2] (3) The plaintiff on the trial of the case requested, and the judge gave, an instruction attempting to apply to the facts of this case the doctrine of res ipsa loquitur. The appellant contends that that doctrine has no application to the facts of this case. The instruction complained of is Number Eight. It is very long and contains several paragraphs. After assembling certain facts the instruction proceeds: ". . . and from such circumstances, if they have been proved, and in the absence of any explanation from the defendant the law presumes that the defendant was negligent, and the burden is then cast upon the defendant to show that the dropping of the tightener and starting the shaft to revolve, was not due to any negligence of the defendant." In such paragraphs the trial court used the word "presumption" nine times. Of course, there is no such presumption. If there is any such presumption one can turn to the particular statute and read it, but everyone must concede that such presumption has never been written into our statutes. If by the word "presume" the court meant "infer," then the court was usurping the function of the jury and was instructing on a question of fact, for it rested with the jury to infer negligence or not to infer negligence. These propositions have been adverted to by the supreme court in a long line of cases. (See People v. Walden,
The judgment is reversed.
Langdon, P. J., and Nourse, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 26, 1921.
Lawlor, J., and Shurtleff, J., dissented.
Angellotti, C. J., was absent.