Pezzoni v. City and County of San Francisco, 14418

• Decision Date: 12 December 1950
• Docket Number: No. 14418,14418
• Citation: 225 P.2d 14,101 Cal.App.2d 123
• Court: California Court of Appeals
• Parties: PEZZONI et al. v. CITY AND COUNTY OF SAN FRANCISCO. Civ.

Page 14

225 P.2d 14

101 Cal.App.2d 123

PEZZONI et al. v. CITY AND COUNTY OF SAN FRANCISCO.

Civ. No. 14418.

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

Dec. 12, 1950.

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.

DOOLING, Justice.

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 law presumes that the motorman and conductor * * * were using the requisite degree of care in the operation of such street car. This presumption is a species of proof * * * to which the defendant * * * (is) entitled, unless and until it is overcome by contradictory evidence.' 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 application of the doctrine of res ipsa loquitur raises an inference of negligence against the defendant. It would be contradictory for the court also to instruct the jury there is a presumption the defendant acted with due care.'

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 argues that these instructions cannot have been prejudicial, but we must assume in support of the order of the trial court that...