255 P. 279 | Cal. Ct. App. | 1927
Defendant Pickwick Stages Northern Division, Inc., appeals from a judgment in favor of plaintiff, as sole heir of Leslie W. Seney, in the sum of $15,000 for the death of said Leslie W. Seney, alleged to have been caused by the negligence of defendant in operating one of its autostages upon which the deceased was a passenger, in such a manner that the stage was overturned and resulted in said death. The case was tried by the court without a jury. *228
The complaint alleges that the defendant is a common carrier of passengers for hire and operates autostages over and along the public roads and highways in the state of California; that on June 24, 1922, plaintiff and her husband were passengers on one of said stages running from Portland, Oregon, to San Francisco, California; that defendant "operated the autostage on which said Leslie W. Seney was a passenger in such a careless, reckless, wanton and negligent manner that the said auto-stage was overturned and said Leslie W. Seney was instantly killed."
Appellant contends that the doctrine of res ipsa loquitur does not apply in this case for the reason that the foregoing is a specific allegation of what constituted the negligence of the defendant. In support of its contention, appellant quotes the following testimony from the record. The plaintiff testified as follows: "Q. By Mr. Earhart: What was the first thing you knew of the happening of that accident, if any happened? A. Well, as we would say, as we were coming up grade on the right-hand side we skidded against the bank and the car jumped and skidded clear across the road and turned upside down. That is as far as I can remember."
The witness Bohme, being the only other witness for plaintiff, testified as follows: "Q. By Mr. Earhart: Now, Mr. Bohme, at the time of the accident, at the time and place mentioned, what was your first knowledge of anything the matter with the car or its operation? A. Why, the car turned to the right to let a vehicle pass, and there was a scraping against the rocks, and then something — I don't know — it turned across the road for some reason or other, and the next thing that we knew was that it turned over. It hit some rocks or some obstacle in the road. The car started bouncing, and it seemingly got unmanageable and turned over."
Appellant urges that the foregoing testimony could have been adduced for no other purpose than proving an allegation of negligence concerning which the plaintiff's counsel considered the burden was upon him to prove. Appellant further urges that no negligence is shown by the testimony above quoted, and that since there was no attempt to rely upon any presumption of negligence, the motion for nonsuit should have been granted. [1] The general rule is well *229
settled that the overturning of a vehicle operated by a common carrier raises an inference of negligence under the doctrine ofres ipsa loquitur. (4 Cal. Jur., sec. 119, p. 980; Dowd v.Atlas T. A. Service Co.,
Appellant next urges that even if the doctrine of res ipsaloquitur did apply, then the plaintiff did not prove negligence on the part of defendant by a preponderance of the evidence.[3] The rule is well recognized that the burden of proof at all times remains upon the plaintiff. The doctrine of res ipsaloquitur does not shift this burden, but merely establishes aprima facie case of negligence which the defendant is bound to meet. All that is required of defendant is to produce evidence sufficient to offset the effect of the plaintiff's showing, and it is not required to offset it by a preponderance of the evidence. (Scarborough v. Urgo,
[5] Appellant asserts that this was an unavoidable accident beyond the power of human care and foresight to prevent and resulted from a cause over which the defendant had no control. We have already indicated that defendant has not shown that the accident was unavoidable. Neither did the accident result from an ordinary risk of the road assumed by the plaintiff. This was not a case where the driver suddenly found himself driving over a skiddy surface and thereby lost control of his car. No one knew the condition of the road better than the driver himself, as he had been driving over the graveled surface for some time. If the road was dangerous he should have driven his car with greater care so as to prevent skidding. Under the facts involved in this case the stage would not have left the road and overturned except for the negligence of the defendant, and such negligence is not a risk assumed by the plaintiff.
Finally, the judgment, in our opinion, is not excessive.
We believe the evidence in this case absolutely establishes the negligence of the defendants, with or without the application of the doctrine of res ipsa loquitur.
The judgment and order denying the motion for a new trial are affirmed.
Conrey, P.J., and Houser, J., concurred.
A petition 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 June 6, 1927. *233