Pezzoni v. City and County of San Francisco, 14418
Citation | 225 P.2d 14,101 Cal.App.2d 123 |
Decision Date | 12 December 1950 |
Docket Number | No. 14418,14418 |
Court | California Court of Appeals Court of Appeals |
Parties | PEZZONI et al. v. CITY AND COUNTY OF SAN FRANCISCO. Civ. |
Dion R. Holm, City Atty., Sylvain D. Leipsic, Deputy City Atty., William F. Bourne, Deputy City Atty., all of San Francisco, for appellant.
Belli, Ashe & Penney, San Francisco, for respondents.
Plaintiffs are husband and wife. The wife testified that she received injuries, on a street car operated by defendant, by being thrown against the iron guard rail in front of the conductor while waiting to give him her transfer. She testified: 'the street car started up and stopped and jerked and threw me against the iron railing', 'a sudden stop', 'stopped with a sudden jerk'.
The jury returned a verdict for defendant and following a timely motion the court granted a new trial 'on the ground of errors of law occurring at the trial'. Defendant appeals from this order.
In support of the order plaintiffs enumerate nine alleged errors in the instructions of the court. We need only consider two of them.
It is conceded that the evidence supported instructions on res ipsa loquitur, Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 81 P.2d 950, 118 A.L.R. 533, and the court gave such instructions. The court also instructed the jury that The jury was thus faced with the metaphysical responsibility of weighing a presumption of care against an inference of negligence. The courts have held that in a res ipsa case it is not proper to give an instruction on the presumption of care. Waite v. Pacific Gas & Elec. Co., 56 Cal.App.2d 191, 132 P.2d 311; Moeller v. Market Street Ry. Co., 27 Cal.App.2d 562, 81 P.2d 475; Smith v. Hollander, 85 Cal.App. 535, 259 P. 958.
The rationale of these holdings is explained in the Waite case, 56 Cal.App.2d at page 202, 132 P.2d at page 317:
The court properly instructed the jury that defendant as a common carrier was bound to use the highest degree of care. It also in a series of instructions described defendant's duty as one to use ordinary care. Appellant...
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