234 P. 863 | Cal. Ct. App. | 1925
The decedent, John J. Atkinson, was killed while riding as a passenger on one of the street-cars operated by the defendant, United Railroads of San Francisco, when said car collided with an automobile truck belonging to *84 the codefendants, George Scharetg and Sons. Plaintiff as the administratrix of the estate of her deceased husband commenced this action for damages, charging that the wrongful death of her husband had been caused by the joint and concurring negligence of said defendants. The collision occurred on Third Street, between Twenty-second and Twenty-third Streets, San Francisco, on June 26, 1920. The negligence charged against the street-car company was that its car was being carelessly operated at an excessive rate of speed, in violation of the municipal ordinance, and without any notice or warning of its approach; and as against the codefendants it was alleged that they carelessly and without notice or warning of any kind operated said truck from one side of Third Street to the other in front of said street-car. The action was tried before a jury, resulting in a verdict for the sum of twenty-two thousand seven hundred dollars in favor of plaintiff and against the defendant United Railroads of San Francisco; the owners of the truck were absolved from liability. The defendant, United Railroads of San Francisco, has appealed.
The evidence, bearing upon some points, is conflicting, but the sufficiency thereof, to sustain the verdict, is not challenged, four of the five points urged by appellant for a reversal of the judgment consisting of attacks upon the instructions, while the fifth point is an assignment of error pertaining to the admissibility of evidence. The circumstances leading up to the collision are as follows: Shortly after the noon hour, on Saturday, the day of the accident, Atkinson, the decedent, boarded a south-bound car of the defendant company on Third Street, some distance north of the intersection of Third and Twenty-second Streets, which car was then, with a number of others, standing on a loop or curve, near the Union Iron Works, for the purpose of allowing passengers to board the same. There was also a string of empty street-cars standing on the north-bound tracks, on Third Street, between Twenty-second and Twenty-third Streets, waiting to take the loop, and which obscured the view of the motorman of the south-bound cars from observing north-bound traffic on the easterly side of Third Street. At this particular time the easterly side of Third Street, between the north-bound cars and *85 the curb was practically blocked by parked automobiles, thereby making it necessary for north-bound traffic on Third Street to proceed to the left of those empty street-cars. This situation made it dangerous for the south-bound street-cars to travel fast or without warning between Twenty-second and Twenty-third Streets. Respondent's evidence shows that notwithstanding the situation described, the motorman of the crowded car on which decedent was riding applied the propelling power of the car in full when he left the loop, and as the car approached Twenty-second Street its speed increased, on account of the descent in grade, so that when it passed Twenty-second Street it was running without any warning at the rate of between thirty and forty miles an hour. Before it reached Twenty-third Street it collided with the broad side of the truck, demolishing the front end of the car and resulting in the decedent's death. The evidence further shows that the truck at the time of the collision was attempting to turn around on Third Street, in order to return to Twenty-third Street, and that the motorman observed said truck at a considerable distance before the collision. The truck had proceeded up Third Street, on the easterly side thereof, until it had almost reached the most southerly end of the string of empty street-cars standing on the north-bound tracks, but being unable to make a turn at Twenty-second Street, owing to a torn-up condition of the street at that intersection, and being unable also to proceed farther northerly on the easterly side of Third Street, because that side of the street was blocked with standing automobiles and street-cars, the driver attempted to make the turn at the point indicated, which was some three hundred feet north of the intersection of Twenty-third Street, when the collision occurred.
[1] The first contention made by appellant is that the trial court erred in instructing the jury on the doctrine of res ipsaloquitur, for the reason that it was a question for the jury to determine which instrumentality was the proximate cause of the injury. It is insisted by appellant that before the doctrine ofres ipsa loquitur may be declared to the jury it must appear as a matter of law that appellant had exclusive control of the causative force and *86
that the accident could not plausibly have happened without defendant being negligent; also that it must clearly appear that the immediate cause of the accident is under the control of appellant or those for whom it is responsible and that where the immediate cause of the injury is only a consequence of an act controlled by the defendant, and not the act itself, the presumption of negligence does not arise, because the proximateness of the act is then brought in question. In support of this contention appellant cites and relies on the case ofHarrison v. Sutter St. Ry. Co. Nat. Brewing Co.,
This same question has been before the courts of this state on several occasions since Harrison v. Sutter St. Ry. Co.,supra, was decided and this contention has been, we think, definitely determined adversely to appellant's views. In those later cases the ruling in Harrison v. Sutter St. Ry. Co.,supra, has been uniformly interpreted to mean that under the circumstances therein presented no presumption of negligence arises against both defendants, which, obviously, is a different proposition than holding, as appellant contends, that there is no presumption of negligence against either defendant; and in those later cases the doctrine has been made clear that under such circumstances a presumption or inference of negligence does arise as against the carrier on whose instrumentality the injured party was riding at the time he received his injuries. For instance, in the case of Houghton v. Market Street Ry. Co.,
We believe the use of the word "presumption" in said instruction, instead of the word "inference," was not fatal thereto. It is true, as appellant points out, in the recent *88
case of Dowd v. Atlas Taxicab Service Co.,
[2] Appellant's next point relates to the doctrine of resipsa loquitur. The case was presented to the jury, so far as the evidence was concerned, in the same manner as if it were an ordinary action for damages based upon negligence, the plaintiff having assumed the burden of proof upon all affirmative allegations set forth in the complaint, and the trial court having fully instructed the jury that the burden was upon plaintiff to prove those allegations before she was entitled to a verdict. However, along with the other instructions given, the court instructed the jury, in effect, that the doctrine of resipsa loquitur applied, and gave two instructions upon that subject, one being general in form and the other applicable to the particular acts of negligence pleaded. Appellant contends that the doctrine of res ipsa loquitur did not apply and that it was therefore error for the court to instruct the jury that it did. This contention is grounded upon the claim that respondent, in her complaint, pleaded specific acts of negligence; that consequently she excluded from the case the doctrine of res ipsaloquitur, and lost the right to have the jury instructed upon that subject. As sustaining such contention appellant cites and relies principally upon the recent cases of Connor *89
v. Atchison, T. S.F. Ry. Co.,
Upon investigation of the adjudicated cases upon this question, it will be ascertained that a sharp conflict of authority exists in reference to the extent to which the court should go in the enforcement of such rule. In some states the courts have gone so far as to establish, and have attempted to follow, an absolute rule to the effect that where specific acts of negligence are pleaded, the right to rely upon the presumption resulting from the doctrine of res ipsa loquitur is totally lost. (Cooper v.Century Realty Co.,
But a third class of cases is found in still other jurisdictions wherein a qualified rule is adopted and followed, which is to the effect that where plaintiff makes specific allegations of negligence, he must rely for his recovery *91
upon, and he is limited to, such specific acts of negligence, and cannot recover for any other negligent act, but he is not deprived of the benefit of the doctrine of res ipsa loquitur so far as those specific acts of negligence are concerned. In other words, it is held in substance that the allegation of specific acts of negligence, while not depriving plaintiff of the benefit of said doctrine, relieves the carrier from the burden of disproving or meeting any other negligent acts than those alleged for the reason that having specified the acts of negligence, plaintiff will be confined to them and not allowed to prove or to recover upon other causes than those alleged. (Palmer Brick Co.
v. Chenall,
In adopting a rule for this state, we are of the opinion that it was not intended to declare an absolute and unqualified rule, that is, one so drastic as to deny plaintiffs in all cases, and under all circumstances, the benefit of the doctrine of res ipsaloquitur, merely because they have voluntarily gone further than the law required them to go, in particularizing the specific acts of negligence upon which they relied for a recovery; but that it was intended that the more liberal rule should be followed which restricts plaintiff, in his proof and recovery, to the specific acts alleged, and relieves the defendant from the burden of exculpating himself from any other acts of negligence than those alleged, but which does not, so far as those particular acts of negligence are concerned, deprive plaintiff of the benefit of the doctrine of res ipsa loquitur. This conclusion is based, primarily, *92
upon the fact that admittedly the rule, as enforced in this state, is not without qualification, for in Connor v.Atchison, T. S.F. Ry. Co., supra, it is said: "However, where the explanation leaves it doubtful as to whether or not the ultimate cause of the injury is the negligence of the party charged, it is proper to instruct the jury as to the res ipsaloquitur doctrine." (Zerbe v. United Railroads of SanFrancisco,
The case of Connor v. Atchison, T. S.F. Ry. Co., supra, was one wherein the judgment was reversed, not because the trial court instructed the jury that the doctrine of presumed negligence did apply, but because of its refusal to instruct the jury that such doctrine did not apply; and such doctrine did not apply for the obvious reason that the statement of plaintiff's cause of action and the proof offered in support thereof showed that the accident was caused by negligent acts which did not give rise to the doctrine of res ipsa loquitur. In Marovich v.Central California Traction Co., supra, five specific acts of negligence were charged in the complaint. A verdict was awarded to plaintiff. Upon appeal it was held that there was no evidence whatever offered in support of one of those alleged acts; although two of the others were proved, the court held, as matter of law, that neither constituted negligence; and of the remaining two the court said that there was no sequential relationship between them and the injury. The giving of the instruction upon presumed negligence was therefore erroneous because it allowed the jury to base its verdict upon some element of damage not pleaded, and perhaps not proved.
The case of McKeon v. Lissner, supra, was reversed mainly because it was alleged that the injuries were received as a result of the failure of defendants to keep an elevator and the apparatus for operating the same in order and repair; *93 whereas the proof showed that the proximate cause of plaintiff's injuries was the failure to have the hallway leading to the elevator properly lighted and that act of negligence was not pleaded. It therefore appeared that the verdict was doubtless rendered against the defendant, under the doctrine of res ipsaloquitur, for a specific act of negligence with which defendants were not charged in the complaint, and which, if true, did not give rise to the application of that doctrine.
Analyzing the record of the case at bar in the light of the three cases last above mentioned, we do not find present here any of the reasons which there invoked the operation of the rule and caused the reversals therein. Here the specific acts of negligence charged were that the car was operated at an excessive and dangerous rate of speed and without warning of its approach; the proof, so far as our attention has been called, was confined to those specific acts; appellant was not called upon to meet any other act of negligence than those alleged in the complaint. Notwithstanding the giving of the two instructions upon the doctrine of res ipsa loquitur, the trial court, in other instructions, clearly stated to the jury the specific acts of negligence alleged in the complaint, and which plaintiff would be required to establish before she was entitled to a verdict. Its instructions as to acts of negligence were restricted to the specific acts alleged. Later, it instructed the jury as follows: "The burden of proof rests upon plaintiff to establish the negligence alleged in the complaint by a preponderance of evidence. If, therefore, you find that the evidence does not preponderate in favor of the plaintiff upon the issue of negligence, I instruct you that the plaintiff has not made out a case and your verdict must be in favor of defendant, United Railroads of San Francisco. If you find that the evidence as to negligence on the part of the defendant, United Railroads of San Francisco, does not preponderate in favor of the plaintiff, but is equally balanced both in weight and quality, I instruct you that the verdict must be in favor of the defendant United Railroads of San Francisco." And again in the following language: "In civil cases, and, of course, you understand this is a civil case, the affirmative of the issue must be proven. The affirmative here is upon the *94 plaintiff as to all affirmative allegations of the complaint. Upon the plaintiff, therefore, rests the burden of proof of such allegations."
In the case of Connor v. Atchison, T. S.F. Ry. Co.,supra, the situation was different. There "no instruction was given to the jury defining negligence or informing them that for the plaintiff to recover it must be shown that the injuries received by him were the proximate result of the negligence of the defendants nor was any instructions given upon the measure of damages." It is therefore manifest, we think, that the jury in the instant case could not have based its verdict against appellant upon any other act or acts of negligence, real or imaginary, than those alleged and proved; and, as before stated, the sufficiency of the evidence to sustain the verdict is admitted, counsel for appellant, in their closing brief saying: "At the outset of this reply brief we desire to state that no contention has heretofore been made nor is any contention now made that the evidence is insufficient as a matter of law to justify the verdict." In this regard the case is clearly distinguishable from Marovich v. Central California TractionCo., supra, because there, as above pointed out, the evidence was held to be entirely insufficient, upon any one of the five specific acts alleged, to justify a verdict for the plaintiff. In the present case, if the elements of violated signals, or defective brakes or other equipment, or any other independent specific act of negligence had become an issue, a different situation might be presented. True, there was some evidence offered by respondent to the effect that the motorman abandoned his post, but such evidence cannot be considered as showing an independent act of negligence; it was merely incidental to and directly connected with the charge that the car was operated at a careless and dangerous speed. Appellant was consequently not required to exculpate itself from any acts of negligence other than those alleged. The instant case, in this respect, is not analogous to McKeon v. Lissner, supra, for there, as stated in the opinion, "the defendants were brought into court upon notice that they were charged with negligence in respect of the repair of the elevator, and in no other respect whatever. They were never notified that any other or different claim would be *95
made against them. Under these circumstances, to tell the jurors, after the close of the trial, that if they should find that the defendants were negligent in the matter of lighting the hallway they should return a verdict for plaintiff, would be to authorize a verdict against the defendants upon a claim against which they had never been called upon to defend themselves. This, in effect, is what was done by the giving of the res ipsa loquitur
instructions. If plaintiff desired to rely upon this additional claim of negligence, she should have notified the defendants thereof by pleading it in her complaint. (Cary v. Los AngelesRy. Co.,
[4] Appellant also objects to instruction XIV, wherein it was stated that proof of injury to a passenger casts the burden of proof upon the carrier alone. In view of the language in Connor
v. Atchison, T. S.F. Ry., supra, that where the explanation leaves it doubtful as to whether or not the ultimate cause of the injury is the negligence *96
of the party charged, it is proper to instruct the jury as to theres ipsa loquitur doctrine, we think the instruction complained of was properly given, and that the instruction did not have the effect, as appellant contends, of compelling appellant to overcome or disprove negligence by a preponderance of evidence. (McCurrie v. Southern Pac. Co.,
[5] Instruction XV is attacked for the alleged reason that said instruction assumed there was an absence of evidence showing that the death of decedent was caused without negligence on the part of appellant. While this form of instruction, if standing alone, might be subject to criticism (Scarborough v. Urgo,
The contention is also made that the court erred in giving instruction LI. claiming that it was an instruction upon a question of fact. In the case of Runnels v. United Railroads,
[6] The final contention of appellant is that error was committed because counsel for respondent was allowed to ask certain questions of the motorman of the car involved in the accident, relative to reasons for his leaving the employment of the appellant company. Counsel for appellant had already elicited from the witness the evidence that he *97 had left appellant's employ "of his own accord," and respondent's counsel therefore claimed the right to cross-examine him upon the subject. Assuming that there was transgression committed by respondent's counsel in this respect, we think it was not serious, in view of the fact that the court later, at appellant's request, with the consent of respondent, fully instructed the jury to disregard the entire matter.
The judgment is affirmed.
Tyler, P.J., and St. Sure, 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 April 1, 1925.
Myers, C.J., Waste, J., and Lennon, J., dissented from the order denying a hearing in the supreme court.