Freitas v. Peerless Stages

• Decision Date: 18 January 1952
• Citation: 239 P.2d 671,33 A.L.R.2d 778,108 Cal.App.2d 749
• Court: California Court of Appeals Court of Appeals
• Parties: , 33 A.L.R.2d 778 FREITAS v. PEERLESS STAGES, Inc. Civ. 14756, 14959.

Page 671

239 P.2d 671

108 Cal.App.2d 749, 33 A.L.R.2d 778

FREITAS v. PEERLESS STAGES, Inc.

Civ. 14756, 14959.

District Court of Appeal, First District, Division 1, California.

Jan. 18, 1952.

Campbell, Hayes & Custer and Daniel M. Feeley, all of San Jose (Edward J. Niland, Santa Clara, of counsel) for appellants.

Edward M. Fellows, Emery J. Delmas, San Jose, for respondent.

PETERS, Presiding Justice.

These two appeals have been consolidated. One (1 Civ. 14,756) is from a judgment in favor of the plaintiff in a negligence action, and the other (1 Civ. 14,959) from an order after judgment purporting to correct the language of a certain instruction as that instruction appears in the reporter's transcript.

Appeal No. 14,756; Facts:

Dorothy Freitas lives in Santa Clara and works in Milpitas. She is a regular rider of defendant's bus. On September 5, 1947, she was a paying passenger on the bus riding from Milpitas to San Jose. Her husband had got on the but at Centerville. At Centerville the bus was fifteen minutes late. At Milpitas it was twelve minutes late.

Mr. and Mrs. Freitas customary got off the bus at First and Santa Clara Streets in San Jose, the intersection at which the accident giving rise to this action occurred. First Street runs north and south; Santa Clara Street runs east and west. The bus was travelling west on Santa Clara Street. The northeast corner of the intersection is occupied by a Roos Bros. store; the northwest corner by a J. C. Penney store. Traffic at the intersection is controlled by traffic lights. It had long been the admitted practice of the drivers of this bus line, when travelling west, to allow passengers to alight either in front of Roos Bros. or in front of the J. C. Penney store, depending upon the traffic signal; that is, if the light was red when the bus arrived, the bus would stop in front of Roos Bros. and allow the passengers to get off, but if the light was green when the bus arrived it would proceed across the intersection and allow the passengers to get off in front of the J. C. Penney store.

Mr and Mrs. Freitas were sitting on a double seat about a third of the way from the front of the bus, with Mrs. Freitas next to the aisle. One of the other passengers signalled the driver to stop at the intersection, and Mrs. Freitas, as the bus approached the intersection, got up and started towards the front of the bus holding on to the aisle seat. She testified that when she was about five rows from the front of the bus it came to a 'terrific' stop which whirled her around and threw her backward; that the jerk threw her down in the aisle; that she bumped her knee on the floor and struck the back of her head on the coin box; that she estimated the speed of the bus just before it stopped at twenty or twenty-five miles per hour; that before she fell she could not see the traffic light at the corner; that when she first arose from her seat the bus was just entering the east crosswalk of the intersection; that she did not notice traffic near the bus; that she was not carrying any bundles and had her purse under her arm.

Most of this testimony was corroborated by Mr. Freitas. He testified that when his wife started forward he got up intending to follow her; that before he got out from between the seats the bus came to a sudeen stop; that when he arose, and while the bus was still in motion, he noticed that the controlling traffic light was yellow; that at that moment the bus was at the beginning of the Roos Bros. building, about the length of the bus from the intersection; that the bus came to its sudden stop after it had proceeded into the marked east crosswalk about two feet; that when he saw the yellow light he did not see any automobile in front of the bus, but that when the bus stopped he observed an automobile in front of the bus; that the bus driver stated that he 'had to stop cold to avoid hitting the car ahead of me.' He estimated the speed of the bus just before it came to a sudden stop at twenty miles per hour. He testified that after his wife got up from her seat the bus speeded up, and that she had only taken a half step forward before the bus stopped.

The driver of the bus was Alvin Still. He testified that as he approached the intersection in question there were three automobiles in front of him; that these cars stopped because the light was red; that when the light changed to green the three automobiles proceeded across the intersection safely; that he proceeded to follow them; that as he came into the crosswalk an automobile made a left-hand turn in front of him and that he had to stop suddenly to avoid hitting that car; that he was then about six feet into the intersection; that just before he stopped he was in low gear and not going over nine miles an hour; that he came to a stop within 'inches' of the car that was turning in front of him. He stated that he had no recollection of the make or age of this car, nor did he remember the number of its occupants. He had no recollection of whether or not he was late or on time at the time of the accident, but did admit arriving late at the depot, after the accident. He testified that the bus in question was new, was equipped with air brakes, and, at a speed of nine miles per hour, could be stopped in six to eight inches.

The driver denied knowledge of the fact that Mrs. Freitas had fallen. He testified that when he stopped, one woman, a Mrs. Bell, did fall near the front exit, but that was the only person he saw fall. Mrs Freitas had testified that she was thrown forward and hit her head on the coin box right beside the driver. Both she and her husband testified that after the accident the driver just sat there, and that Mr. Freitas picked up Mrs. Freitas and Mrs. Bell from the floor. The driver testified that he started to help Mrs. Bell, but that Mr. Freitas got there first. He also testified that he took Mrs. Bell's name and address and tried to ascertain if she was hurt. He stated that neither Mr. nor Mrs. Freitas said a word to him as they got off the bus, and made no complaint. Admittedly neither Mr. nor Mrs. Freitas then reported to the driver that Mrs. Freitas had been hurt, but several days later reported the injuries to the manager of the bus company.

On this appeal no contention is made that the jury award of $6,500 was excessive, so that the extent and nature of the injuries need not be discussed except to say that respondent suffered a contusion on the back of her head, and a neck and back sprain that aggravated an existing arthritic condition. No contention is made that the evidence is not sufficient to sustain the judgment.

Did the Allegations of the Complaint Preclude the Application of the Doctrine of Res Ipsa Loquitur?

The trial court instructed on the doctrine of res ipsa loquitur. Appellant argues that the complaint alleges negligence specifically, and that such fact precludes the application of the doctrine. The challenged allegation is as follows: 'That at said time and place defendant Doe One so negligently and carelessly drove and operated said Peerless bus that the same was caused suddenly and violently to jerk, bump and stop; that as the proximate result of the negligent and careless operation of said bus by defendant Doe One, plaintiff was violently knocked to the floor of said bus and suffered severe personal injuries * * *'

The California cases are in hopeless conflict as to what constitutes a general and what a specific allegation of negligence for the purpose under discussion, and as to the legal effect of pleading negligence specifically. See cases collected by Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 214. As a matter of logic it would seem that, if the above allegation be deemed to be specific, the only legal result that would follow would be that the inference of negligence would be limited to the sudden stopping of the bus and the respondent would be precluded from relying upon other acts of inferred negligence. Wills v. Price, 26 Cal.App.2d 338, 79 P.2d 406; Phillips v. Southern California Edison Co., Ltd., 23 Cal.App.2d 222, 72 P.2d 769; Mintzer v. Wilson, 21 Cal.App.2d 85, 68 P.2d 370; Atkinson v. United Railroads of San Francisco, 71 Cal.App. 82, 234 P. 863. Independent of this reasoning, the cases in California clearly establish that pleading negligence in the fashion above set forth does not preclude the plaintiff from relying upon the doctrine. Within the meaning of the cases the above is either a general allegation or a mixture of general and specific. In either event, the doctrine is applicable. Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008.

Appellant places its main reliance upon the case of Pellegrino v. Los Angeles Transit Lines, 79 Cal.App.2d 40, 179 P.2d 39. There the challenged allegation was as follows, 79 Cal.App.2d at page 43, 179 P.2d at page 41: 'the defendant Los Angeles Railway Corporation through and by its agents and servants did carelessly, and unskillfully operate said street car, and not using the proper degree of care and [sic] caused said street car to start up and as a direct and proximate cause of the negligence of the defendants as aforesaid plaintiff sustained an injured shoulder. * * *'

The appellate court held that this constituted a specific allegation of negligence and that for that reason the doctrine of res ipsa loquitur was not applicable. No hearing in the Supreme Court was requested. The case is contrary to a long line of other cases, and is not supported by the main authority relied upon in the opinion--the case of Davidson v. American Liquid Gas Corp., 32 Cal.App.2d 382, 89 P.2d 1103. In that case an allegation that the defendant negligently allowed gas to escape and ignite was held not to preclude the application of the doctrine. The court stated, 32 Cal.App.2d at page 386, 89 P.2d at page 1104: 'No attempt was made to describe the negligence in detail or charge why or...