Shaw v. Pacific Greyhound Lines

• Decision Date: 28 March 1958
• Citation: 50 Cal.2d 153,323 P.2d 391
• Court: California Supreme Court
• Parties: Ernest SHAW, Respondent, v. PACIFIC GREYHOUND LINES (a Corporation), Appellant. L. A. 24748.

Page 391

323 P.2d 391

50 Cal.2d 153

Ernest SHAW, Respondent, v. PACIFIC GREYHOUND LINES (a Corporation), Appellant.

L. A. 24748.

Supreme Court of California, In Bank.

March 28, 1958.

Rehearing Denied April 23, 1958.

Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker, Los Angeles, for appellant.

Milan Medigovich, Los Angeles, for respondent.

GIBSON, Chief Justice.

Plaintiff, a passenger on one of defendant's buses, brought this action for injuries to his knee allegedly resulting from the negligence of the driver in suddenly reducing the speed of the bus. Pursuant to a verdict, judgment was rendered in favor of defendant. A new trial was granted upon the ground that there had been an error of law occurring at the trial. Defendant has appealed.

The testimony of plaintiff may be summarized as follows: He boarded the bus at Corona del Mar about 12:30 in the morning and sat in the second seat behind the driver. About 30 minutes later, while the bus was traveling at a speed of approximately 65 miles an hour, it suddenly slowed down as though there had been a severe application of the brakes. Plaintiff was thrown against the seat in front of him, and, as a result, his knee was injured. Before the bus reached the next stop, Doheny Palisades, plaintiff informed the driver that he had been injured by the movement of the bus and that he was in 'terrific pain.' At the Doheny Palisades stop plaintiff attempted to get up but was unable to do so. When the bus arrived in San Diego he was met by two claims adjusters for defendant who helped him off the bus and drove him to a hospital. X-rays were taken of his knee, and his leg was placed in a cast. Plaintiff said that several hours before he boarded the bus at Corona del Mar he had had four highballs, a full-course dinner, and an after-dinner drink, but that he did not become intoxicated.

The bus driver testified that plaintiff stumbled when he entered the bus at Corona del Mar and that there was an odor of alcohol on his breath. The driver said that he did not apply the brakes of the bus abruptly during the portion of the trip in question, that plaintiff first complained of his injury at the Doheny Palisades stop, and that plaintiff was then standing on the ground outside the bus, holding onto the door.

Other witnesses testified that plaintiff was intoxicated shortly before he got on the bus and that the brakes of the bus were not applied suddenly. According to a person employed by defendant who was present when plaintiff was questioned by a claims adjuster, plaintiff said that the bus was going from 35 to 40 miles an hour when he was hurt and that he first told the driver of his injury when the bus stopped at Doheny Palisades.

The jury was instructed: '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.'

Although it is proper in many cases to give an instruction that the mere happening of an accident does not support an inference of negligence, a problem arises where, as here, there is evidence warranting the application of the doctrine of res ipsa loquitur. It is apparent that an instruction like the one quoted above contains an idea which might be understood by layman to be inconsistent with the doctrine of res ipsa loquitur. 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. The direction that the mere happening of an accident, considered alone, does not support an inference of negligence would appear to contradict the usual statement of the doctrine of res ipsa loquitur as found in the typical instructions given on the subject, namely, that an inference arises from the happening of the accident that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. In the absence of a proper explanation of the relationship between the two instructions, the words 'mere' and 'considered alone' might not prevent laymen from erroneously concluding that under no view of the evidence could an inference of negligence be drawn from the happening of the accident. And it has been held that where both instructions were given without explanation, an order granting a new trial should be affirmed. (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.

In Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7, it was held that the giving of the mere happening of an accident instruction was prejudicial error where it had been conceded by the parties that defendant had fired a bullet which killed a child. It was pointed out that, in view of the concession, the instruction in effect told the jury that the fact that the child was killed by the defendant's act afforded no evidence of negligence. The opinion then stated that, even though instructions on the doctrine of res ipsa loquitur were not requested, the jury should not have been foreclosed from considering the evidence provided by the happening of the accident itself.

Plaintiff's testimony in the present case would support findings that he was injured when he was riding as a passenger on defendant's bus, that the injury resulted from a sudden slowing of the vehicle due to a severe application of the brakes, and that no improper conduct by plaintiff proximately contributed to his injuries. This evidence entitled plaintiff, upon request, to instructions on the doctrine of res ipsa loquitur. Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 435 et seq., 260 P.2d 63; St. Clair v. McAlister, 216 Cal. 95, 97 et seq., 13 P.2d 924. On the other hand, the jury could reasonably have found from the evidence that the bus did not slow down suddenly, that plaintiff was intoxicated and that, because of his condition, he fell and injured himself through no fault of the driver. Under this view of the evidence, the injury did not, as plaintiff claimed, result from the negligent operation or management of the vehicle, and he was not entitled to the inference afforded by the application of res ipsa loquitur. See Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 435-437, 260 P.2d 63; Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 731, 81 P.2d 950, 118 A.L.R. 533; Freitas v. Peerless Stages, Inc., 108 Cal.App.2d 749, 757, 239 P.2d 671, 33 A.L.R.2d 778. The doctrine was not, therefore, applicable as a matter of law, and this case does not come within the rule announced in Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7.

In Barrera v. De La Torre, 48 Cal.2d 166, 170 et seq., 308 P.2d 724, where, because of the factual situation, it did not appear that res ipsa loquitur was applicable as a matter of law and no instruction upon the doctrine was requested or given, the court in affirming a judgment for defendant held that it was not error to instruct the jury that the mere fact that an accident happened does not support an inference of negligence. As we have seen, however, where both the mere happening of the accident and the res ipsa loquitur instructions were given without explanation of the conflicting ideas contained in the two instructions, it has been held that the trial court was justified in granting a new trial. 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.

The following instruction on res ipsa loquitur offered by plaintiff was refused: 'If, and only in the event, you should find that there was an accidental occurrence as claimed by the plaintiff, namely: _ _; 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 is a form of evidence, and if there is none other tending to overthrow it, or if the inference 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 (it) did, in fact, exercise ordinary (the utmost) care and diligence or that the accident occurred without being proximately caused by any failure of duty on his (its) part.' (2 Cal.Jury Instns., Civ. (4th rev. ed. 1956) No. 206, pp. 636-637.)

The requested instruction was incomplete in that plaintiff did not fill in the blank space after the word 'namely,' and it was also defective because of plaintiff's failure to choose between the alternatives offered by the words appearing in parentheses and to make the appropriate deletions. A trial judge is not required to correct a requested instruction which is incomplete or erroneous. Tossman v. Newman, 37 Cal.2d 522, 525, 233 P.2d 1; Davis v. Johnson, 128 Cal.App.2d 466, 473, 275 P.2d 563; Bertolozzi v. Progressive Concrete Co., 95 Cal.App.2d 332, 337-338, 212 P.2d 910.

Since it cannot be said as a matter of law that the doctrine of res ipsa loquitur is applicable here, and since the court was not required to give the inaccurate instruction offered by plaintiff and no instruction on the subject was given, we would probably have affirmed the judgment under the rule of Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724, had the court not granted the motion for a new trial. The question presented here, however, is whether the court under the circumstances abused its discretion in granting a new trial.

The determination of a motion for a new trial rests so completely within the court's discretion that its...