140 Cal. App. 254 | Cal. Ct. App. | 1934
In an action brought to recover damages for the loss of their father the jury brought in a verdict in favor of the plaintiffs. From the judgment entered on the verdict the defendant lias appealed.
Before taking up the points made by it we will set forth some facts shown by the record. In their complaint the plaintiffs alleged that at the time of the accident the defendant was engaged in the business of supplying illuminating gas and electricity and had installed and maintained a system of gas mains and pipes under Third Street in the neighborhood where the accident occurred. That allegation was not denied by the defendant. The plaintiffs alleged the negligence of the defendant in general terms. (Stein v. United Railroads, 159 Cal. 368 [113 Pac. 663].) That allegation was denied by the defendant. After the jury was impaneled the plaintiffs made an opening statement. In it their counsel stated with much detail the facts that they expected to prove. Immediately thereafter the plaintiffs took up the burden of proof. In so doing they called many witnesses and introduced over five hundred folios of testimony. By the direct evidence of their witnesses they introduced evidence proving or tending to prove that the accident occurred at 4032 Third Street in San Francisco. That number designates a house that is located in what is known as Butchertown, a large portion of which was built on filled-in marsh-lands. The record docs not disclose when the filling in was done but it does show the fact that the
At the close of the plaintiffs’ case in chief the defendant made a motion for a nonsuit. The motion was denied and the defendant thereupon introduced its defense. One witness was called in rebuttal. He merely identified the piece of pipe that had been taken out of the concrete wall and it was admitted in evidence.
The first point made by the defendant is that there was no evidence upon which to base a verdict of negligence. We think that may not be said as a matter of law. Taking the direct evidence and the inferences which the jury was entitled to draw therefrom, we think the point may not be sustained. (Union etc. Co. v. San Francisco Gas etc. Co., 168 Cal. 58, 60, 61 [141 Pac. 807]; Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 13 [151 Pac. 286].)
The plaintiffs requested and the trial court gave two instructions which were as follows:
“IV.
“In civil cases, and this is a civil ease, the affirmative of the issue must be proven. The affirmative here is upon the plaintiffs as to all affirmative allegations of the complaint. Upon the plaintiffs, therefore, rests the burden of proof by a preponderance of evidence. However, there is in law a doctrine known as res ipsa loquitur, meaning that the thing or matter speaks for itself. In other words, when a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”
“XLII.
“You are instructed that in this ease plaintiffs are not required to show particularly what the specific act of neg*258 ligence was, if any, which produced the accident which resulted in the death of Charles Brunig, Jr., deceased, but are only required to show that the accident was one that would ordinarily not have occurred had due care been employed. The burden of proceeding then shifts to the defendant, Pacific Gas and Electric Company, to show its freedom from negligence. ’ ’
The defendant asserts that the trial court committed prejudicial error. It bases its assertion on the fact that the exact facts of the accident were put in evidence by the plaintiffs. True it is that the plaintiffs introduced direct evidence of what happened but their case rested on indirect evidence as to the negligence, if any, of the defendant. Under a similar condition of the record the same contention was made in Lippert v. Pacific Sugar Corp., 33 Cal. App. 198 [164 Pac. 810]. In deciding the point, at page 208, the court said: “We are satisfied that this is a case where the doctrine of res ipsa loquitur is applicable, and plaintiffs are not precluded from relying upon it because they charged specific omissions of duties or acts of negligence. This latter proposition is well supported in Cassady v. Old Colony Street Ry. Co., 184 Mass. 156 [63 L. R. A. 285, 68 N. E. 10], where it was said: ‘The defendant also contends that even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine (res ipsa loquitur), because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, as in Winship v. New York, N. H. & H. R. Co., 170 Mass. 464 [49 N. E. 647], and similar cases, there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from
The last point made is that the court committed prejudicial error in admitting, over defendant’s objections, testimony of other instances of gas troubles in the neighborhood all arising under different conditions, or from unknown causes, and all occurring in a remote time. To that point there are many answers. The other instances did not arise under different conditions but under the same conditions— sinking ground in filled-in territory. They did not all occur in a remote time. They extended over a long period of time. Some were recent, others not so recent, others still less recent. The admissibility of the incident was addressed to the discretion of the trial court and the weight of the evidence was for the jury. It was the contention of the plaintiffs that Butehertown is built on filled-in marsh-lands; that the defendant laid its pipes in that ground as early as 1908 or prior thereto; that the ground under the pipes and in which they were laid continually settled and thus created a strain on the pipes which caused and tended to cause breakage and leakage throughout a long period of time but, nevertheless, the defendant negligently failed to inspect and to make such alterations as would prevent the breaks and leaks. To present that contention they called several witnesses. Mr. Lagrave testified that in 1920 the gas pipe in front of his house, four doors removed from 4032 Third Street, blew up. Mrs. Bordenave testified that from 1914 to 1919 she occupied the flat at number 4032, in which the accident happened. During that time three complaints were made to the defendant regarding escaping gas on the sidewalk in front of the flat. Mrs. Fern lived in the same premises in 1921. During that time the defendant made excavations and located two leaks. Mrs. Robertson testified that about five years before the trial, at the comer of Hudson Avenue, one block from number 4032, gas escaped and came through the blocks in the sidewalk. Mrs. Mercadier testified that in 1921 she saw the defendant’s employees digging up the street in front of number 4034 Third Street, the house she lived in. The plaintiffs also
“The court received evidence that prior to the breaking of the valve in question, another similar valve located in another part of the system also broke. It is claimed that this was error. Respondent justifies the reception of this evidence because, upon his theory, the entire installation .was improper and unsafe, and was bound to give way at the weak or weakest point in the circuit, and that the situation is identical with that of the drive-belt, which it was claimed was defective and had broken upon previous occasions, evidence as to which was held admissible in Brossard v. Morgan Co., 150 Wis. 1 [136 N. W. 181], and numerous other cases on the point are cited by respondent. We conclude that there was no error in the reception of this evidence under the circumstances and under the issue formed.”
We find no error in the record. The judgment is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 30, 1934, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 27, 1934.
Langdon, J., and Spence, J., pro tem., being disqualified, did not participate.