Phillips v. Noble

• Decision Date: 28 March 1958
• Parties: Walter W. PHILLIPS, Appellant, v. Glenn R. NOBLE, Respondent. Welter W. PHILLIPS, Appellant, v. Charles MITCHELL, Respondent. L. A. 24706.
• Court: California Supreme Court

Page 385

323 P.2d 385

50 Cal.2d 163

Walter W. PHILLIPS, Appellant, v. Glenn R. NOBLE, Respondent.

Welter W. PHILLIPS, Appellant, v. Charles MITCHELL, Respondent.

L. A. 24706.

Supreme Court of California, In Bank.

March 28, 1958.

Everett E. Demler and Eric A. Rose, Long Beach, for appellant.

Bauder, Gilbert, Thompson & Kelly, Los Angeles, Ball, Hunt & Hart, Clarence

S. Hunt, Long Beach, and Jean Wunderlich, Los Angeles, for respondents.

GIBSON, Chief Justice.

This is an appeal by plaintiff from an adverse judgment entered on a jury verdict in consolidated actions to recover damages for personal injuries suffered by him when a car driven by defendant Mitchell, in which plaintiff was riding, collided with one driven by defendant Noble.

The collision occurred at the intersection of Sepulveda Boulevard and 22nd Street in Manhattan Beach. Sepulveda, a six-lane thoroughfare, runs in as north-south direction, and 22nd connects with Sepulveda from the east, forming a T-shaped intersection. There were no stop signals on Sepulveda at the intersection, but there was a reflector stop sign on 22nd. Immediately before the collision occurred, Mitchell was driving in a northerly direction on Sepulveda in the lane next to the center line, and Noble was making a left turn from 22nd onto Sepulveda.

Mitchell testified that as he was approaching the intersection there were cars in each of the two lanes to his right and that these cars started to slow down when they were about ten feet from the intersection, at which time he was about 25 feet farther back. Nor knowing why the other cars were stopping, Mitchell applied his brakes and stopped a foot or two inside the intersection. He said he did not see Noble's car until a second before the collision.

Noble testified that he stopped at the reflector sign on 22nd Street for about 15 seconds and then proceeded into the intersection at a speed of from three to five miles per hour. As he entered the intersection, the cars in the two northbound lanes closest to him slowed down and stopped. These vehicles obstructed his view of the third lane so that he did not see the Mitchell car until he passed the two outside lanes. When he first saw Mitchell's car it was about 25 feet away and traveling between 30 and 35 miles per hour, and it did not slow down before the collision. Mitchell's right front fender struck Noble's left front fender, and Mitchell's car continued in motion after the collision for about 14 feet.

Plaintiff testified that he paid Mitchell fifty cents a day for transportation. Mitchell denied that he received any compensation.

The trial court, at defendant's request, gave the following instruction: 'The mere fact that an accident happened, considered alone, does not support an inference that some person, or any party to this action, was negligent.' It is plaintiff's contention that an inference of negligence arose from the happening of the accident under the doctrine of res ipsa loquitur, and he asserts that the instruction precluded the jury from drawing the inference.

An issue as to the propriety of the quoted instruction has frequently arisen in cases where there was evidence warranting the application of the doctrine of res ipsa loquitur. See Shaw v. Pacific Greyhound Lines, Cal.Sup., 323 P.2d 391; Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7; Barrera v. De La Torre, 48 Cal.2d 166, 170 et seq., 308 P.2d 724. This is because the instruction contains an idea which, unless explained, might be understood by laymen as being inconsistent with the doctrine. See Shaw v. Pacific Greyhound Lines, Cal.Sup., 323 P.2d 391; 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.

We have recently held that, in the absence of a request for instructions on the doctrine of res ipsa loquitur, it is not reversible error to give the instruction on the mere happening of an accident if the application of the doctrine depends upon the determination of disputed facts. Barrera v. De La Torre, 48 Cal.2d 166, 170 et seq., 308 P.2d 724. In such a case a request for appropriate instructions on the doctrine is essential so that the court may be apprised of the plaintiff's reliance on it and have an opportunity to explain the relationship between the doctrine and the instruction on the mere happening of an accident. In the absence of such a request, the only situation in which the giving of the challenged instruction was held to constitute error was where the res ipsa loquitur inference arose as a matter of law from facts conceded by the defendant. Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7.

Here no instruction on res ipsa loquitur was requested or given, and the case is not one in which the doctrine may be applied as a matter of law on the basis of undisputed facts. The evidence relating to the conduct of the defendants prior to the collision is conflicting, and we cannot say that it is more probable than not that both drivers were negligent or that one was at fault to the exclusion of the other. With respect to the cause of action against Mitchell, there was evidence that plaintiff was a guest within the meaning of section 403 of the Vehicle Code, in which event he could not recover unless he established that the injury resulted from the intoxication or wilful misconduct of Mitchell. ¹ Obviously res ipsa loquitur, which permits the drawing of an inference that ordinary care was not used, cannot serve as a means of establishing intoxication or wilful misconduct. Fiske v. Wilkie, 67 Cal.App.2d 440, 449-452, 154 P.2d 725; cf. Cadotte v. Industrial Accident Comm., 86 Cal.App.2d 754, 757, 194 P.2d 563. Insofar as Noble is concerned, there can be no justification for applying the doctrine as a matter of law against him alone. Assuming that the doctrine might be used in some collision cases to require an explanation from both defendants, Noble would be placed at a serious disadvantage if he were required as a matter of law to exculpate himself in order to avoid liability when Mitchell, who may have been equally or solely negligent, would not be required to do so if plaintiff were considered his guest.

The case of Godfrey v. Brown, 220 Cal 57, 29 P.2d 165, 93 A.L.R. 1092, relied upon by plaintiff, is clearly distinguishable. The court pointed out that the injury there involved took place before the effective date of the guest statute (now section 403 of the Vehicle Code, referred to above) and that for this reason the driver of the car in which the plaintiff was riding was liable for ordinary negligence. 220 Cal. at page 60, 29 P.2d at page 166. Accordingly, the case can be of no assistance to plaintiff with respect to his action against Mitchell. The case is likewise not authority regarding Noble's liability. The court was there concerned with the propriety of an instruction which permitted the jury to apply res ipsa loquitur to the driver of the car in which the plaintiff was riding, and there was no discussion of the liability of the driver of the other vehicle, who, although a defendant in the trial court, was not a party to the appeal.

Shaw v. Pacific Greyhound Lines, Cal.Sup., 323 P.2d 391, is also distinguishable. That case involved the propriety of an order granting a motion for a new trial where an instruction on res ipsa loquitur containing only minor defects was refused although an appropriate instruction would have been clearly justified by the evidence. ² In view of the broad discretionary powers of a judge in passing upon a motion for a new trial we upheld the order, but we recognized that the reversal of a judgment on appeal would not be warranted in circumstances such as those now before us.

It should be pointed out, however, that the form of the challenged instruction does not fit a factual situation like the one involved in the present case. The instruction told the jury that the mere fact that an accident happened does not support an inference that 'some person, or any party to this action,' was negligent. It should have been worded so as not to deny the existence of a probability that someone was negligent but instead to state that no inference arises that both drivers were negligent or that a particular one was negligent to the exclusion of the other. However, since plaintiff did not request an instruction which would have apprised the court that he was relying on the doctrine of res ipsa loquitur, we cannot say that the judgment here should be reversed because of the failure of the trial court to use words in the challenged instruction which would have avoided conveying the idea that there was no probability of negligence on the part of at least one of the drivers.

Plaintiff claims that the trial court modified two instructions requested by him and that the modifications rendered the instructions uncertain and erroneous. The record, however, does not show the instructions in the form requested by plaintiff, and the asserted errors may be attributable to him. It is, of course, plaintiff's burden, as appellant, to present a record which is sufficiently complete to establish that the claimed errors were not invited by him, and in the absence of such a showing he may not properly complain. (Cf. Lynch v. Birdwell, 44 Cal.2d 839, 846-847, 285 P.2d 919.)

The judgment is affirmed.

SHENK, TRAYNOR and SPENCE, J.J., concur.

CARTER, Justice (concurring).

I concur in the judgment of affirmance but upon the sole ground that the instruction here in question, while erroneous, was not prejudicial to plaintiff under the facts as disclosed by the record in this case. The instruction referred to reads as follows: 'The mere fact that an accident happened, considered alone, does not support an inference that some person, or any party to this action, was negligent.' In my opinion it is error to give the foregoing...