Scott v. Burke

• Decision Date: 01 August 1952
• Citation: 39 Cal.2d 388,247 P.2d 313
• Parties: SCOTT v. BURKE. GERRY v. BURKE. L. A. 22274, 22275
• Court: California Supreme Court

Page 313

247 P.2d 313

39 Cal.2d 388

SCOTT v. BURKE.

GERRY v. BURKE.

L. A. 22274, 22275.

Supreme Court of California

Aug. 1, 1952.

Rehearing Denied Aug. 28, 1952.

Knight, Gitelson & Ashton, Robert R. Ashton, Samuel A. Rosenthal and Leonard G. Ratner, all of Los Angeles, for appellant Scott.

Mark F. Jones, Los Angeles, and W. L. Engelhardt, Los Angeles, for appellant Gerry.

Parker, Stanbury, Reese & McGee and Raymond G. Stanbury, Los Angeles, for respondent.

Campbell, Hayes & Custer, San Jose, and W. R. Dunn, San Francisco, amici curiae.

SCHAUER, Justice.

These two actions for personal injuries arising out of the same automobile accident were consolidated for trial, judgments on jury verdicts were entered in defendant's favor, and plaintiffs appeal. We have concluded that, contrary to plaintiffs' contention, the jury were properly instructed and the judgments must be affirmed. ¹

The uncontradicted evidence, insofar as material to these appeals, is as follows: At 9 o'clock p. m. on May 23, 1948, defendant, the two plaintiffs, and three other men left Guaymas, Mexico, in a 1947 Cadillac sedan belonging to plaintiff Gerry. The car, less than a year old, had gone only 11,000 or 12,000 miles and was in excellant mechanical condition with good brakes and good tires with lefeguard innertubes. The party had gone to Guaymas on a fishing trip, and had been sharing the driving. Defendant drove from Guaymas to Hermosillo, a distance of about 87 miles. Another member of the party was at the wheel during the four hour drive from Hermosillo to Nogales, on the border, where they arrived about 4:45 o'clock a. m. on May 24; defendant slept during this time. At nogales defendant took over the driving again and proceeded north toward Tucson, Arizona; the other members of the party fell asleep and remained sleeping until after the accident occurred. About an hour after the group left Nogales the automobile, still driven by defendant, traveled diagonally across the left half of the highway and off of an embankment on the left side. 'Skid marks' (according to the transcript, but from the context probably meaning tire marks), broken and recurrent as if the brakes had been repeatedly applied, released and reapplied, extended for a distance of 78 feet across the highway at an angle to the point where the car went over the embankment. At the site of the accident the highway was straight, level, and dry; it was daylight at the time and visibility was good although there was 'a little haze.' After leaving the highway the car traveled 114 feet to the edge of an arroyo, where there was a sloping bank of approximately 28 feet, at which point the wheel marks stopped for about 25 feet. The wheel marks then continued for 35 feet up the other side of the arroyo where the car came to a stop. It was badly wrecked and the parties injured.

A police officer reached the scene about 6:45 o'clock a. m., and after an investigation interviewed defendant at a hospital between 8 and 9 o'clock the same morning. The officer testified that defendant stated that he did not know his speed at the time of the accident, that he had previously been traveling at a reasonable and prudent speed, and that 'I evidently went to sleep. I don't know what happened until I woke up at the hospital.'

Defendant testified that he had no recollection whatsoever of the accident and could not explain why it occurred; that his first recollection thereafter was of opening his eyes behind the wheel, and the last recollection he had of any event prior thereto was of his driving of the car between Nogales and Tucson; that there was very little traffic on the road when he took the wheel at Nogales; that he did not remember applying the brakes or of being interviewed by the police officer; that he did remember being taken to the hospital and arriving there; that his highest speed was 60 miles per hour; that in his best opinion he did not fall asleep prior to the accident; that he had previously driven the automobile and was familiar with it. Defendant was redered temporarily unconscious by the accident, and suffered a concussion of the brain and injuries to his head. Medical testimony was introduced to the effect that one who is knocked unconscious by a blow on the head may suffer a retrograde amnesia by which his memory of events immediately preceding his unconsciousness may be obliterated for a period of from a few seconds to a number of hours, and that under such circumstances the injured person would be unable to recall any of the events which happened during the period blocked out of his memory by such amnesia.

Because the other persons in the car were sleeping, they were unable to testify as to the cause of the accident, but plaintiffs offered no criticism of defendant's driving while they were awake.

Upon this evidence the court instructed the jury on the res ipsa loquitur doctrine, ² and also instructed that if the jury believed that defendant as a result of the shock of the accident was unable to remember and testify as to his own conduct or other facts of the accident then a presumption arose that he 'was obeying the law and was exercising ordinary care and doing such acts as an ordinarily prudent person would have done in the same circumstances.' (See Code Civ.Proc. § 1963, subds. 1, 4.) The court further instructed that 'these instructions direct your attention to two conflicting rebuttable presumptions relating to the conduct of the defendant (one) that he exercised due care at the time of the accident which presumption arises in the event that you find that as a result thereof he is unable to remember the facts pertaining to the same, and (two) that he was negligent if you find that he was driving on the wrong side of the road, or that he permitted the automobile to leave the road in question entirely, or that he fell asleep at the wheel. If you find the facts to exist which give rise to these presumptions, then these conflicting presumptions constitute evidence, the effect of which is to be determined by you, not by the court; they are to be weighed and considered by you in the light of and in connection with all of the other evidence, and you are to give to them, and each of them, such weight as you deem proper;' and that 'In determining what caused the accident you are entitled to take into consideration the evidence of the physical facts and to draw reasonable inferences therefrom.'

Plaintiffs contend that inasmuch as the res ipsa loquitur doctrine is applicable (and defendant does not dispute this; see Druzanich v. Criley (1942), 19 Cal.2d 439, 444, 122 P.2d 53) the court erred to their prejudice in instructing the jury as to the presumption of due care, and that the judgments must therefore be reversed.

It is settled law that where alleged negligent acts and conduct of a decedent are at issue before the court and the 'testimony respecting such acts and conduct necessarily must be produced by witnesses other than the deceased, * * * an instruction that the deceased is presumed to have exercised ordinary care for his own concerns is * * * proper' except that if the fact proved by uncontradicted testimony produced by the party seeking to invoke the presumption, 'under circumstances which afford no indication that the testimony is the product of mistake or inadvertence * * * is wholly irreconcilable with the presumption * * * the latter is dispelled and disappears from the case.' (Westberg v. Willde (1939), 14 Cal.2d 360, 365, 367, 94 P.2d 590; see also Mar Shee v. Maryland Assurance Corp. (1922), 190 Cal. 1, 9, 210 P. 269; Smellie v. Southern Pacific Co. (1931), 212 Cal. 540, 560-561, 299 P. 529; Rogers v. Interstate Transit Co. (1931), 212 Cal. 36, 39, 297 P. 884; Mundy v. Marshall (1937), 8 Cal.2d 294, 296, 65 P.2d 65.) One who by reason of loss of memory is unable to testify concerning his conduct at and immediately before the time of the accident is entitled to invoke the same presumption, subject to the same exception. (Scott v. Sheedy (1940), 39 Cal.App.2d 96, 101, 102 P.2d 575; Roselle v. Beach (1942), 51 Cal.App.2d 579, 583, 125 P.2d 77; Eastman v. Atchison T. & S. F. Ry. Co. (1942), 51 Cal.App.2d 653, 667, 125 P.2d 564; Fietz v. Hubbard (1943), 59 Cal.App.2d 124, 131, 138 P.2d 315; McNear v. Pacific Greyhound Lines (1944), 63 Cal.App.2d 11, 15, 146 P.2d 34; Simon v. City and County of San Francisco (1947), 79 Cal.App.2d 590, 598, 180 P.2d 393; Duvall v. T. W. A. (1950), 98 Cal.App.2d 106, 110, 219 P.2d 463; Russell v. Andersen (1951), 101 Cal.App.2d 684, 226 P.2d 350. This disputable presumption is by statute declared to be evidence (Code Civ.Proc., § 1957; see also §§ 1961, 1963(1)(4)), and is sufficient to support a verdict of a jury unless dispelled by the 'irreconcilable' fact proved by the party relying on it. (Westberg v. Willde (1939), supra, 14 Cal.2d 360, 365, 94 P.2d 590, and cases there cited; Chakmakjian v. Lowe (1949), 33 Cal.2d 308, 313, 201 P.2d 801.) It may outweigh positive evidence adduced against it. (Smellie v. Southern Pacific Co. (1931), supra, 212 Cal. 540, 549, 299 P. 529, and cases there cited; cf. Speck v. Sarver (1942), 20 Cal.2d 585, 588, 128 P.2d 16.)

Plaintiffs argue, however, that it is likewise settled in California by a series of decisions that where, as here, defendant offers testimony which if believed by the jury would entitle defendant to benefit by the presumption of due care, it is nevertheless reversible error to so instruct the jury in a case in which plaintiff is entitled to benefit by the res ipsa loquitur inference.

In Smith v. Hollander (1927), 85 Cal.App. 535, 259 P. 958, defendant's automobile ran onto the sidewalk and struck plaintiff, a pedestrian. It was held that the court correctly instructed the jury on the res ipsa loquitur doctrine, and that (85 Cal.App. at page 540, 259 P. 958) 'Where it was proper to instruct on this doctrine it was proper for the court to refuse defendant's...