139 P. 73 | Cal. | 1914
The following statement is taken from the opinion of the district court of appeal of the second district, filed in this case:
"The action is one brought to recover damages for injuries alleged to have been received by plaintiff Dora R. Housel, who was a passenger upon a car of defendant, on account of the negligent operation of such car. The action was tried by a jury and a verdict rendered in favor of defendant. From the judgment entered upon such verdict, and from an order denying a new trial, plaintiffs appeal upon a statement.
"The injuries inflicted upon plaintiff Mrs. Housel were occasioned by reason of a collision between the car upon which she was a passenger and a hay wagon, both being upon the public streets of the city of Los Angeles. There is evidence in the record tending to show that the driver of the wagon, which was drawn by four horses and loaded with hay, going down a hill, lost control of his team, and that when about one hundred and fifty feet from the point of collision one of the horses fell; that the motorman in charge of the car, having an opportunity to and seeing the team approaching, made no effort to stop his car, but continued on at a high rate of speed, and the car was actually in motion at the time the collision occurred. In other words, there was evidence tending to show gross negligence on the part of the servants of defendant and that the injury was occasioned thereby. As is usual in cases of this character, there was a decided conflict in the evidence; that introduced by defendant tending to show that the accident was unavoidable and that its servants exercised the utmost care in the management of the car. Under this proof, the court properly instructed the jury as to the degree of care enjoined by law upon a carrier of passengers; that even the slightest negligence upon the part of defendant's servants rendered defendant liable, and that this was true even though some unavoidable accident or negligence of some other person may have also contributed to cause the accident." *247
The principal question in this case is whether the doctrine ofres ipsa loquitur is applicable under the circumstances. This question arises in view of certain instructions to the jury given by the trial court, and the refusal of the court to give certain other instructions requested by plaintiffs.
The doctrine of res ipsa loquitur is thus stated in section 59 of Shearman Redfield on the Law of Negligence (6th ed.), viz.: "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 a want of care." This doctrine has been applied in a long line of cases in this state involving injuries to a passenger while being transported by a common carrier. The effect of the doctrine when applied to such cases, is that proof of the injury to the passenger while he was being carried as such creates a prima facie case or presumption of negligence on the part of the carrier, which the carrier is called upon to meet or rebut. "The presumption that the injury was caused by the negligence of the carrier, which is raised upon the proof by the plaintiff that he was injured while being carried as a passenger, is itself a fact which the jury must consider in determining its verdict, and which, in the absence of any other evidence in reference to the negligence, necessitates a verdict in favor of the plaintiff." (See Bush v. Barnett,
The theory of learned counsel for defendant is that the doctrine is not applicable here for the alleged reason that the injury was not caused by an instrumentality under defendant's control, or, at least, that the evidence on the question whether it was caused by such an instrumentality was conflicting.
As against the carrier, it appears to be settled by the decisions in this state, that under such circumstances as appear here, the doctrine of res ipsa loquitur is applicable in favor of the passenger. The question was squarely presented in Osgood v.Los Angeles Traction Co.,
There is some conflict of authority upon the proposition we have been discussing. This court, however, has heretofore adopted the view we have set forth, and we see no good reason to depart therefrom.
We see nothing in the claim that the theory on which the case was tried was such as to make immaterial the matter we have been discussing.
In view of what we have said, we are of the opinion that the district court of appeal was correct in its conclusion that a reversal must be had.
As was said by the district court of appeal, it is unnecessary to pass upon the alleged misconduct of counsel for defendant, as it is not presumable that a repetition of the matters claimed to constitute misconduct will occur on another trial.
The judgment and order denying a new trial are reversed.
Shaw, J., Sloss, J., Lorigan, J., Melvin, J., and Henshaw, J., concurred.