Barrera v. De La Torre

• Decision Date: 22 March 1957
• Citation: 48 Cal.2d 166,308 P.2d 724
• Court: California Supreme Court
• Parties: Felix BARRERA and Dolores Barrera, his wife, Plaintiffs and Appellants, v. Armondo A. DE LA TORRE, Defendant and Respondent. L. A. 23875

Page 724

308 P.2d 724

48 Cal.2d 166

Felix BARRERA and Dolores Barrera, his wife, Plaintiffs and Appellants, v. Armondo A. DE LA TORRE, Defendant and Respondent.

L. A. 23875.

Supreme Court of California

March 22, 1957.

Ernest V. Shockley and Edward Raiden, Los Angeles, for appellants.

Schell, Delamer & Loring and Fred B. Belanger, Los Angeles, for respondent.

SPENCE, Justice.

Plaintiffs, husband and wife, appeal from a judgment for defendant entered on a jury verdict in an action brought to recover damages allegedly resulting from defendant's negligent running of his automobile against plaintiffs' house. They contend that the trial court committed prejudicial error in the instructions to the jury, but we have concluded that this contention cannot be sustained. Furthermore, we have concluded that there is no merit in the suggestion of either plaintiffs or defendant that the question of whether defendant was or was not negligent was a question to be determined as a matter of law by the court rather than as a matter of fact by the jury.

On November 7, 1953, about midnight, defendant was driving his automobile westerly on Third Street in Los Angeles. Beyond the intersection of that street with Arizona Street his automobile went over the curb, across the sidewalk, through a chain-link fence, and crashed against plaintiffs' house. Third Street runs east and west and is about seventy-five feet wide. Arizona Street runs north and south and is about firty feet wide. There was a boulevard stop sign on Arizona Street at the south entrance of the intersection.

Defendant was the only eye-witness to the accident. He testified that when he was about twenty feet east of the intersection and traveling west at a speed of approximately twenty miles per hour, he saw an automobile on Arizona Street traveling north; that it was then about fifty feet sough of the intersection, which was 'back from the boulevard stop' and to his left; that he glanced to his right, and then again to his left, at which time he saw the other automobile about eight to ten feet from him, traveling at an estimated speed of fifty miles per hour; that as he passed the center of the intersection, the other automobile struck the left rear fender of his automobile, knocking him off the driver's seat and to the floorboard; that he then 'must have touched the accelerator, as (his) car gathered speed,' and veered to the left, going 'completely out of control,' jumping over the south curb of Third Street, and striking plaintiffs' house, which was about one hundred feet west of the intersection. Defendant further testified that after the accident, the driver of the other automobile 'turned off his lights and * * * sped away,' with its 'front bumper * * * dragging on the ground'; that the other automobile was a 1941 Chevrolet because he went back to the corner and found there 'part of a bumper and a piece of (its) skirt' so indicating, which articles the police later examined and took as evidence; that he saw a 'brush mark' about fifteen feet long at the intersection, which was well lighted.

One of the investigating officers, as a witness for defendant, testified that he arrived at the scene of the accident about 12:25 a. m.; that defendant was sober; that defendant told him that he had been struck by another automobile, when it 'failed to stop at Third Street and drove into his left rear,' causing 'him to slide to the right-hand side of (his) car,' so that he 'ran into the building and fence before he could get to the pedals'; and that defendant further stated that the other automobile's 'front bumper was dragging on the ground as it left the scene.'

The parties first are in dispute as to whether or not the doctrine of res ipsa loquitur is applicable here. They agree that the doctrine has these three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of some one's negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915; Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258; Prosser on Torts, Second Ed, 1955 (Hornbook Series), p. 201. Obviously in this case conditions (1) and (3) were met. Defendant claims that condition (2) was not met because when the other automobile struck his automobile in the intersection, his automobile went out of his control, jumped the curb and crashed into plaintiffs' house. The car then being out of his control, defendant contends that he cannot be held responsible for plaintiffs' damages under that doctrine. McDonald v. Cantley, 214 Cal. 40, 45, 3 P.2d 552; Staples v. L. W. Blinn Lumber Co., 97 Cal.App. 387, 392, 275 P. 813. This argument assumes that the jury was required to find that the accident happened exactly as defendant testified. On the other hand, plaintiffs claim that defendant's explanation was highly improbable, being based upon an alleged collision between his and a 'phantom car' with the consequent wresting of his car from his control and its striking plaintiffs' house. So far as they are concerned, plaintiffs claim their damages were occasioned by but one car, which was that of the defendant, and therefore the res ipsa loquitur doctrine was applicable. Druzanich v. Criley, 19 Cal.2d 439, 444, 122 P.2d 53. But regardless of whether there was or was not a two-car collision in line with defendant's account, it could not be said as a matter of law that defendant thereby lost control of his automobile so as to render the doctrine inapplicable. Rather these were all matters for the jury to weigh in the light of the required conditions, and an appropriate instruction concerning the doctrine would have been proper. Seneris v. Haas, supra, 45 Cal.2d 811, 823, 291 P.2d 915.

However, plaintiffs did not request an instruction on the doctrine of res ipsa loquitur. Under such circumstances they may not argue on appeal that the court erred in failing to give a specific instruction. Lahti v. McMenamin, 204 Cal. 415, 421, 268 P. 644; Mills v. Los Angeles Junk Co., 3 Cal.App.2d 546, 547-548, 40 P.2d 285; Comstock v. Morse, 107 Cal.App. 71, 75, 290 P. 108. But, of course, they may question the correctness of the charge to the jury though they made no complaint at the time of its occurrence. Code Civ.Proc., § 647; Cook v. Los Angeles Ry.Copr., 13 Cal.2d 591, 594, 91 P.2d 118.

Plaintiffs contend that the court erred in giving the following instruction: '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 accident was negligent.' (BAJI 131.) Of course, as a general comment on this instruction, the single fact of a car crashing into a house, without more, does suggest negligence on the part of someone although the factor of responsibility of any particular person may still remain to be determined. But without emphasis on this portion of the instruction, plaintiffs claim that the instruction precluded the jury from considering the application of the res ipsa loquitur doctrine in its possible relation to defendant. It has been held that the challenged instruction should not be given where the undisputed evidence showed that but one dangerous instrumentality was involved in the happening of the accident and such instrumentality was in the exclusive control of the defendant. In such case where 'it was conceded that the fatal bullet was fired by defendant, * * * though instructions on the doctrine of res ipsa loquitur were not requested, the jury should not have been foreclosed from considering the evidence provided by the happening of the accident itself in determining whether defendant was negligent.' Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7, 9.

However, in this case there was evidence that two instrumentalities were involved in the accident, and it was questionable whether the conditions of the res ipsa loquitur doctrine were satisfied. A somewhat similar situation was presented in Middleton v. Post Transportation Co., 106 Cal.App.2d 703, 235 P.2d 855, where an instruction substantially the same as the one here criticized was given along with an instruction concerning the doctrine of res ipsa loquitur. In holding that no error was committed, the court said in 106 Cal.App.2d at page 705, 235 P.2d at page 856: 'The fact that the doctrine of res ipsa loquitur is applicable in an action for personal injury does not deprive a defendant of his right to an instruction that the mere fact of injury is no evidence of his negligence or liability. * * * such instruction called the attention of the jury to the rule of law that the mere happening of an accident, that is, separated from everything else shown by the evidence, will not support an inference of negligence on the part of defendant. This instruction does not conflict with the res ipsa loquitur instruction, for such instruction does not become applicable to a case unless several factors concur in addition to the mere happening of the accident: * * * In the present case the jury were entitled to find that certain elements of the doctrine of res ipsa loquitur were not present; therefore such doctrine became inapplicable and the jury were properly advised that they could not draw an inference of negligence on the part of defendant merely because an accident had happened.' See, also, Silva v. Pacific Greyhound Lines, 119 Cal.App.2d 284, 287-288, 259 P.2d 743; Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 241, 240 P.2d 672; Seedborg v. Lakewood Gardens, etc., Ass'n, 105 Cal.App.2d 449, 455-456, 233 P.2d 943.

It thus appears that the criticized instruction would permit the application of the doctrine of res ipsa loquitur if the elements of that doctrine were found to be present. Since...