Keena v. Scales

• Decision Date: 24 October 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Maruice J. KEENA, Plaintiff and Appellant, v. Frank J. SCALES, Defendant and Respondent. Civ. 20213.

Page 625

34 Cal.Rptr. 625

Maruice J. KEENA, Plaintiff and Appellant, v. Frank J. SCALES, Defendant and Respondent.

Civ. 20213.

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

Oct. 24, 1963.

As Modified on Denial of Rehearing Nov. 20, 1963.

Boccardo, Blum, Lull, Niland & Teerlink, by Edward J. Niland, San Jose, for appellant.

John P. Whitney, San Jose, for respondent.

MOLINARI, Justice.

This is an appeal by plaintiff from a judgment for defendant entered on a jury verdict in an action for damages for personal injuries. The sole question presented is whether the trial court committed prejudicial error in not giving plaintiff's proffered instruction on res ipsa loquitur.

Plaintiff, as a business invitee of defendant, entered the latter's office for the purpose of discussing an automobile repair bill. He sat down on a swivel chair in front of defendant's desk while defendant, who was seated behind the desk, computed the repair bill. Plaintiff testified that he sat on the chair for a period of from five to ten minutes in a forward position watching the computation; that when defendant completed his computation and proceeded to add the figures on an adding machine, plaintiff for the first time leaned back in the chair and that he went backwards in one motion falling to the floor. ¹ Plaintiff came to rest still in a seated position in the chair. ² Plaintiff testified that he did not hear the sound of wood breaking before the fall. Defendant, who did not observe the fall because he was looking down at his desk, testified that he heard no noise before the chair hit the floor. Plaintiff testified, further, that as he started to get up from the floor, one of the chair's casters was off and that 'there was a lot of pieces of wood.' Defendant, on the other hand, stated the caster was not off after the accident, and stated, further, that before the accident plaintiff was sitting and 'leaning back in a comfortable position' and was using the chair in a normal fashion as he himself 'had done on many occasions. * * *' Mrs. Rondoni, defendant's sister, testified that she was looking into the office through a glasspane door; that she saw plaintiff leaning back comfortably; that he then moved a little bit, leaned back again, and then he fell. She also testified that she had used the chair herself and had never had any difficulty with it.

The condition of the chair, after the fall, was as follows: all of the slats on the back rest were broken; the back rest was loose; one arm rest was loose and an upright connecting it to the seat was broken off at the base; and the other arm rest was off. The chair was approximately forty years old and had been purchased by defendant eight years previously. Defendant testified that he had used the chair daily; that it was designed so that persons who sat in the chair could lean back if they desired; that he had leaned back in the chair when he used it as far as it was comfortable; that 'nothing ever happened'; that he '[n]ever fell out'; and that prior to the accident the chair was in good condition; that it was 'very sound and solid'; that none of the slats in the back rest were loose; and that the back rest did not wobble.

Defendant's accountant, Lund, testified that he had purchased new casters for the chair six months before the accident. Lund also stated that the chair was 'in perfect condition' prior to the accident. He did testify, however, three months before the accident he had had an accident with the chair 'in the same place; * * *' He stated that at that time he sat in the chair and as he was in the process of leaning back in it, the chair fell out from under him, but that it did not break. On cross-examination, Lund testified that he 'went back fast.' Lund testified further that the more modern chairs have a wider base and 'a lower center of balance, not so likely to tip.' He also stated that although customers frequently used the chair he did not warn them that it could tip over easily because 'we didn't feel it was necessary. * * *' ³

Each side produced expert testimony concerning the probable cause of the accident. on behalf of plaintiff, Peter Watson, a physicist, testified that he had examined the chair and found that two of the screws in the back rest had been loose for some period of time and that the slats on the lower part of the back rest were relatively loose; that the manner in which the slats were broken indicated that they had broken in a backward rather than a forward direction; that in his opinion, the looseness of the screws allowed the back rest to move in a backward direction while plaintiff was seated in the chair, causing the slats to break and that without doubt the break occurred when plaintiff leaned back in the chair and not when the chair struck the floor.

Emanuel Fritz, a wood technologist, testified for plaintiff to the effect that the back rest on the left-hand side of the chair was loose because the screw holes had become enlarged; that the glue at the upper end of the slats was ineffective, leaving the slats loose at that end; that in his opinion the left-hand side had become loose because the screws were loose before the accident occurred so that the back rest became separated from the style while plaintiff was seated in the chair, causing the slats to break.

William Lorell, a professor of engineering and mechanics, testified for defendant that he had found no evidence that there had been motion between the back rest and the style where they had originally been joined; that the slats at the top were very tight; that there appeared to be no evidence of any previous looseness of the left style or left arm rest; that one of the slats had been fractured for some time, but that it was impossible to determine whether the back of the chair was broken by a forward or backward force; that logically, the most probable way in which the chair was broken was by the blow on the floor. He testified further that the mechanics of defendant's chair did not appear to allow it to go back too far in normal operation, but that he had not found a swivel chair yet that could not tip over, and that he fell out of them 'with clock-like regularity.'

The res ipsa loquitur instruction proffered by plaintiff and refused by the trial court read as follows: 'If, and only in the event, you should find that the chair in question collapsed in the manner as claimed by the Plaintiff and if you should find that from that accidental event, as a proximate result thereof, Plaintiff has suffered injury, you are instructed as follows: An inference arises that the proximate cause of the occurrence in question was some negligent conduct on the part of the Defendant. That inference itself is a form of evidence, and if none other exists tending to overthrow it, or if the inference, either alone or with any other evidence supporting it, preponderates over contrary evidence, it warrants a verdict for the Plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the Defendant to rebut the inference by showing that he did, in fact, exercise ordinary care and diligence, or that the accident occurred without being proximately caused by any failure of duty on his part.'

In Roddiscraft, Inc. v. Skelton Logging Co., 212 A.C.A. 802, 28 Cal.Rptr. 277, we recently had occasion to review the doctrine of res ipsa loquitur and its applicability in California negligence law. We there stated the doctrine and the existence of the conditions upon which it is based to be as follows: 'Before the doctrine may be applied, however, the following requisite conditions must be met: (a) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (b) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (c) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citations.] When these basic conditions exist the rule of res ipsa loquitur comes into play and an inference of negligence on the part of the defendant is raised. [Citations.] The existence of the conditions upon which the doctrine is predicated is usually a question of fact. [Citation.] Accordingly, where the evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res opsa loquitur is present. [Citations.] It should be noted, however, that one or more of the three conditions, may under the particular circumstances of the case exist as a matter of law. [Citation.] Where there is no issue of fact as to the existence of any of these conditions, the application of res ipsa loquitur is compelled as a matter of law, and the court is thereupon called upon to direct the jury to draw the inference of negligence. [Citations.] On the other hand, if the existence of any condition is one of fact it is the province of the jury to determine, under proper instructions, whether such condition is present. [Citation.] In the situation where the existence of the three conditions, or any of them, is a question of fact, the jury must first determine that each of such conditions exists before the judge can direct it to draw the inference of negligence. [Citations.]' (Pp. 811-812 of 212 A.C.A., p. 282 of 28 Cal.Rptr.)

Plaintiff does not here contend that the doctrine is applicable as a matter of law; nor does he contend that any of the afore-mentioned conditions exist as a matter of law. In this latter respect he concedes that the existence of each of the requisite conditions is a question of fact. Accordingly, he contends, there was sufficient evidence upon which the jury could find the existence of each condition and that the instruction submitted by him properly submitted the issues of fact attendant upon each of...