Villa v. Shaffer

• Decision Date: 15 June 1966
• Citation: 51 Cal.Rptr. 856,242 Cal.App.2d 815
• Court: California Court of Appeals Court of Appeals
• Parties: Andrew N. VILLA, Jr., Plaintiff and Appellant, v. Lawrence E. SHAFFER et al., Defendants and Respondents. Civ. 7788.

Page 856

51 Cal.Rptr. 856

242 Cal.App.2d 815

Andrew N. VILLA, Jr., Plaintiff and Appellant, v. Lawrence E. SHAFFER et al., Defendants and Respondents.

Civ. 7788.

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

June 15, 1966.

Robert C. Todd, Robert J. Sturhahn, Rutan & Tucker, Santa Ana, for plaintiff and appellant.

Robert E. Aitken, Ball, Hunt & Hart, Long Beach, for defendants and respondents.

OPINION

McCABE, Presiding Justice.

The plaintiff appeals from a judgment entered in favor of defendants.

On November 23, 1962, at about 4:30 p.m., a multiple rear-end collision occurred on the southbound lane on Euclid Avenue. Plaintiff's Valiant was the first vehicle in the accident. Defendant McTeer, driving a Chevrolet, was second in line with defendant Shaffer driving a Ford automobile owned by defendant Union Oil Company of California being the last car in line. Plaintiff had stopped his Valiant on signal at the cross street, Westmont, with defendant McTeer behind him. Upon the signal changing, plaintiff accelerated across the intersection with defendant McTeer following him. When defendant Shaffer joined this line of cars is not clear from the record, but he did so some distance before the accident. Euclid Avenue at and south of the intersection of Westmont is a two travel-laned street in either direction. Justice south of Westmont on the curb lane of Euclid a police officer was assisting the occupants of the stalled vehicle which blocked the curb lane and caused all southbound traffic to travel on the inside or center lane of Euclid.

Plaintiff testified that south of the stalled vehicle there was an otherwise unidentified vehicle in front of him which stopped to allow a dog to cross from east to west across Euclid and in front of the otherwise unidentified car. Further, plaintiff testified he gently stopped his Valiant, however, the officer who had observed the dog crossing Euclid testified he did not see a car in front of plaintiff's Valiant and that plaintiff's car stopped abruptly. Defendant McTeer testified the plaintiff's vehicle stopped '* * * real suddenly, and I heard the brakes and seen his lights at the same time; then I hit my brakes.' Defendant McTeer does not testify he saw the dog but did testify, 'I just * * * as I hit * * * as I hit my brakes there I noticed a movement, seen it ahead of his (plaintiff's) car.' Plaintiff gave no hand signal, heard no application of brakes or skidding or any noise or a collision before his car was hit from the rear by defendant McTeer's Chevrolet. Both plaintiff and defendant McTeer testified that after the stop at Westmont, plaintiff's vehicle did not attain a speed of over fifteen miles per hour. The officer stated the speed was under twenty-five miles per hour. Prior to the accident, plaintiff had not seen either of the defendants' cars. Defendant McTeer recalls his Chevrolet was a few feet from the rear of plaintiff's Valiant at the time he, McTeer, came to stop. Further, McTeer testified that after his Chevrolet had stopped, he was hit from the rear which impact forced the front of his car into the rear of plaintiff's car. Defendant Shaffer testified to the contrary saying that he did not see defendant McTeer's Chevrolet prior to the accident, saw no lights on McTeer's car; he heard a collision and applied his brakes '* * * in a hurry.' Defendant Shaffer testified he saw the dog prior to the accident but did not see plaintiff's Valiant. There was no testimony from anyone as to the speed attained by defendant Shaffer's Ford after it stopped at Westmont and prior to the collision.

Specifically the court found among other facts:

(1) A dog ran in front of plaintiff's Valiant.

(2) Plaintiff stopped abruptly when he saw the dog.

(3) Defendant McTeer abruptly stopped his Chevrolet.

(4) Defendant Shaffer abruptly stopped his Ford.

(5) Defendant McTeer's Chevrolet hit the rear-end of plaintiff's Valiant.

(6) Defendant Shaffer's Ford hit the rear-end of defendant McTeer's Chevrolet.

In the findings of fact the trial court concluded there was no negligence on the part of defendant McTeer or Shaffer and no imputation of negligence to defendant Union Oil Company of California and the dog running in front of plaintiff's Valiant was the proximate cause of the impacts. Judgment was entered in favor of defendants.

On appeal, plaintiff invokes the doctrine of Res ipsa loquitur in support of his contention that the judgment is contrary to law. In essence he contends the burden of going forward with the evidence shifted to the defendants if the doctrine were indeed applicable to the circumstances of the instant case. (Burr v. Sherwin Williams, 42 Cal.2d 682, 688, 268 P.2d 1041; Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498, 15 Cal.Rptr. 161, 364 P.2d 337; Persike v. Gray, 215 Cal.App.2d 816, 30 Cal.Rptr. 603; Linde v. Emmick, 16 Cal.App.2d 676, 61 P.2d 338.) Therefore, an inference of negligence could be aldduced which must be overcome by defendants, and if not overcome, entitled plaintiff to a judgment, citing Sweeney v. Pozarelli, 228 Cal.App.2d 585, 591, 39 Cal.Rptr. 601; Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396; Pacific Greyhound Lines v. Querner, 187 Cal.App.2d 190, 9 Cal.Rptr. 370; Wright v. Ponitz, 44 Cal.App.2d 215, 112 P.2d 25.) Additionally, plaintiff urges the requisite standard of care, which should have been employed by the defendants herein, is established by section 2350, Vehicle Code, in that a motorist is required to drive at a speed not to endanger persons or property and his motor vehicle must be equipped with adequate brakes. Finally, there is a presumption a normal person will see and hear that which is within sight and hearing. (Miller v. Western Pacific, 207 Cal.App.2d 581, 24 Cal.Rptr. 785.)

Defendant Shaffer counters plaintiff's assertions by contending (1) the plaintiff must prove defendants' negligence by a preponderance of evidence and when the evidence is evenly balanced plaintiff has not sustained the burden of proof on that issue; (2) under the Res ipsa loquitur doctrine, the burden of proof only shifts to defendant the burden of going forward with the evidence, and defendant is not required to rebut the inference of negligence under that doctrine by a preponderance of evidence. (Patterson v. San Francisco and San Mateo Electric Railway Co., 147 Cal. 178, 81 P. 531.) It is only necessary for defendants to explain the act, James v. American Buslines, 111 Cal.App.2d 273, 244 P.2d 503, and after the explanation the burden remains in the plaintiff. (Kahn v. Triest-Rosenberg Cap Company, 139 Cal. 340, 73 P. 164.)

Neither party herein disputes the application of the doctrine to the circumstances of the instant case and in this conclusion we concur. (Hudspeth v. Jaurequi, 234 Cal.App.2d 526, 527, 44 Cal.Rptr. 428; Sweeney v. Pozarelli, supra; Pacific Greyhound Lines v. Querner, supra.) Rather the parties disagree as to the evidentiary effect of the application of the doctrine, and if, in fact, the defendant evidentially has sustained the requisite showing necessary to negative the inference or presumption of negligence arising from the application of the doctrine.

The procedural effect of the doctrine has been an issue of some confusion since its first enunciation by Baron Pollock in Byrne v. Boadle, 2 H&C 722, 159 Eng.Rep. 299 (1863). The effect accorded the doctrine in California is unsettled and there is authority for the proposition it is merely a permissible inference analogous to circumstantial evidence ¹ or creates a presumption of negligence which shifts either the burden of going forward or the burden of proof to the defendant. ²

The doctrine of Res ipsa loquitur is applicable only where no injury would have occurred in the ordinary course of events if due care was...