Amar v. Union Oil Co. of Cal.

• Decision Date: 22 December 1958
• Citation: 166 Cal.App.2d 424,333 P.2d 449
• Court: California Court of Appeals Court of Appeals
• Parties: Nina AMAR, Isaac Amar, Sophie Hassid, and Frank McClane, a minor, by Lillian McClane, his guardian ad litem, Plaintiffs and Respondents, v. UNION OIL COMPANY OF CALIFORNIA, a corporation, and Ray Walter Wadlow, Defendants and Appellants. Civ. 23269.

Page 449

333 P.2d 449

166 Cal.App.2d 424

Nina AMAR, Isaac Amar, Sophie Hassid, and Frank McClane, a minor, by Lillian McClane, his guardian ad litem, Plaintiffs and Respondents, v. UNION OIL COMPANY OF CALIFORNIA, a corporation, and Ray Walter Wadlow, Defendants and Appellants.

Civ. 23269.

District Court of Appeal, Second District, Division 2, California.

Dec. 22, 1958.

Veatch, Thomas & Carlson and Henry F. Walker, Los Angeles, for appellants.

William B. Murrish, Hollywood, Robert A. Cushman, Los Angeles, for respondents.

FOX, Presiding Justice.

Judgment was entered in favor of defendants at the conclusion of a jury trial in which plaintiffs sought to recover damages for personal injuries. Plaintiffs' motion for a new trial based on the ground that error was committed in giving certain instructions was granted and defendants appeal from the order granting the new trial.

Defendant Wadlow was employed by the defendant company as a gasoline truck driver. While driving a fully loaded company truck westbound on the Hollywood Freeway, Wadlow lost control of the vehicle, which subsequently crossed over a divider into the eastbound traffic. The automobile in which the plaintiffs were riding, which was eastbound, crashed into the rear of defendants' truck as it passed across the eastbound lanes. Wadlow, following the accident, was operated on for acute thrombosis of the right common carotid artery. In was defendants' position that Wadlow suffered a sudden paralyzing stroke without previous warning and that this was the cause of the accident. Plaintiffs, on the other hand, offered evidence that the stroke was not the cause of the accident but rather a result thereof. The evidence was also in conflict on other points. For example, there was conflicting testimony as to when the truck went out of control with respect to where it crossed the divider; whether Wadlow was slumped over the steering wheel and unable to use both his hands; and as to the cause and the time of the tire blowout on the defendants' truck.

The jury was instructed in part as follows: 'In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence.' BAJI 134. 'The mere fact that an accident happened, considered alone, does not support an inference that some party or any party to this action, was negligent.' BAJI 131. 'The mere fact that an accident happened, considered alone, does not give rise to a legal inference that it was caused by negligence or that any party to this action was negligent.' BAJI 131.1. 'From the happening of the accident involved in this case as established by the evidence, an inference arises that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference itself is a form of evidence, * * *' BAJI 206-B. The first three of these instructions were given at the defendants' request and the last upon plaintiffs' request.

The granting or denying of a motion for a new trial rests, to a great extent, with the sound discretion of the trial court and will be disturbed on appeal only where it is clearly shown that there has been an abuse of that discretion. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 323 P.2d 391; Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 733, 306 P.2d 432; Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 169, 153 P.2d 338. As stated in the Shaw case, supra, at page 159 of 50 Cal.2d, at page 394 of 323 P.2d, '[t]he determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears, and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 733-734, 306 P.2d 432. In the Brandelius case it was stated that the granting of a new trial could be reversed 'only if * * * the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury.' [Citation.]'

Therefore, if the complained of instructions were in any sense misleading or confusing, the trial court's granting of a new trial must be affirmed. As to the question of the prejudicial effect of the instructions, assuming there was error, the following quotation from the Brandelius case, supra, 47 Cal.2d at page 744, 306 P.2d at page 441, is controlling: 'Whether the giving of this erroneous instruction was prejudicial need not be determined by this court on this appeal from the order granting a new trial. It is true that section 4 1/2 of article VI of our Constitution should control the action of the trial court in considering a motion for a new trial, but when the trial court has determined that the error in the instructions was prejudicial and has therefore granted the motion, the sole issue before the appellate court is whether the trial court has abused its discretion. (Citations.)'

Plaintiffs contend that (1) error was committed in giving BAJI 131 and 131.1, supra, in conjunction with and instruction on res ipsa loquitur in a case where res ipsa loquitur was applicable under the undisputed facts, and (2) it was error to instruct on unavoidable accident.

Our Supreme Court has held where uncontradicted evidence warrants the application of the res ipsa loquitur doctrine, it is error to give the 'mere fact of an accident' instruction (BAJI 131, 131.1). Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897; Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7. In the case at bar, although the evidence is in conflict as to certain aspects of the case, the factual situation necessary to bring the doctrine of res ipsa loquitur into operation exists without contradiction. See Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 441, 247 P.2d 344; Michener v. Hutton, 203 Cal. 604, 607, 265 P. 238, 59 A.L.R. 480. In Shaw v. Pacific Greyhound Lines, 50 Cal.2d 156, 323 P.2d 391, 393, the court stated that '[i]n the absence of a proper explanation of the relationship between the two instructions, the words 'mere' and 'considered alone' might not prevent laymen from erroneously concluding that under no view of the evidence could an inference of negligence be drawn from the happening of the accident. And it has been held that where both instructions were given without explanation, an order granting a new trial should be affirmed. Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 261-262, 143 P.2d 929; England v. Hospital of Good Samaritan, 22 Cal.App.2d 226, 230, 70 P.2d 692; Ellis v. Jewett, 18 Cal.App.2d 629, 634, 64 P.2d 432.'

Defendants maintain that there was sufficient explanation within the rule of the Shaw case in that, at plaintiffs' request, the court instructed as follows: 'Now the instruction just given [on res ipsa loquitur] may appear to constitute an exception to the general rule that the mere happening of an accident does not support an inference of negligence. The instruction, however, is based upon a special doctrine of the law which may be applied only under special circumstances.' Then after setting forth these circumstances, the instruction concludes: 'When all these conditions are found to have existed, they beget the inference of negligence and proximate cause concerning which I have instructed you * * *.' BAJI 206-C.

In a case where the undisputed evidence does not establish the applicability of res ipsa loquitur doctrine as in the Shaw case, supra, both parties are entitled to instructions consistent with their respective contentions, and it is not error to give BAJI 131 in conjunction with a res ipsa instruction so long as the jury are clearly informed that if they find res ipsa applicable, the mere happening of an accident rule is not to govern. In such a situation, misconception and confusion are avoided. Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 240 P.2d 672; Seedborg v. Lakewood Gardens, etc., Ass'n, 105 Cal.App.2d 449, 233 P.2d 943. However, in a case, as the one at bar, where the evidence discloses without conflict that res ipsa loquitur is applicable, the jury is likely to be confused by the giving of the contradictory instruction and the saving grace of the...