Vogreg v. Shepard Ambulance Co., 33226

• Decision Date: 03 November 1955
• Docket Number: No. 33226,33226
• Citation: 47 Wn.2d 659,289 P.2d 350
• Court: Washington Supreme Court
• Parties: Steve VOGREG and Eleanor T. Vogreg, his wife, Appellants, v. SHEPARD AMBULANCE COMPANY, Inc., a corporation, Respondent.

Page 659

47 Wn.2d 659

289 P.2d 350

Steve VOGREG and Eleanor T. Vogreg, his wife, Appellants, v. SHEPARD AMBULANCE COMPANY, Inc., a corporation, Respondent.

No. 33226.

Supreme Court of Washington, Department 1.

Nov. 3, 1955.

Jacob Kalina, Michael S. Curtis, Seattle, for appellants.

Skeel, McKelvy, Henke, Evenson & Uhlmann and Thos. J. O'Leary, Seattle, for respondent.

WEAVER, Justice.

This is an action for damages for personal injuries. A jury returned a verdict for defendant. Plaintiffs appeal from a judgment of dismissal, assigning error to three instructions given and to the trial court's refusal to give two requested instructions.

Mrs. Vogreg ordered an ambulance from defendant to transport her husband, a paralytic, to their new residence. Mr. Vogreg was placed on the left-hand side of the rear compartment. Defendant's attendants helped Mrs. Vogreg into the ambulance. She was seated next to her husband's stretcher.

In the course of the journey, Mrs. Vogreg felt a 'little jar,' and the door next to her, on the right side of the ambulance opened. She screamed, reached over to shut the door, and fell or was pulled out of the ambulance.

In the prior trial of this cause, the trial court held, as a matter of law, (a) that Mrs. Vogreg was a guest in defendant's ambulance, and (b) that the doctrine of res ipsa loquitur did not apply to the facts, so that the permissible inferences which would be raised by it were not present to carry the case to the jury. On appeal, the judgment of dismissal, entered at the close of plaintiffs' case, was reversed. This court held that the question of the existence of the host-guest relationship was one of fact for the jury; that the doctrine of res ipsa loquitur applied to this situation and was sufficient to take the case to the jury. More detailed facts appear in our former opinion. Vogreg v. Shepard Ambulance Service, Inc., 1954, 44 Wash.2d 528, 268 P.2d 642.

On re-trial, substantially the same facts were established. Consequently, the trial court instructed as follows:

'Instruction No. 10. You are instructed that when an instrumentality is shown to be under the exclusive control and management of an owner, or his servant, and an accident occurs which does not ordinarily happen if those who have the control and management use proper care, then you are entitled, in the absence of explanation, to infer that the accident arose from the want of such care.

'If, therefore, you find that the side door of the ambulance was under the exclusive control of the defendant, or its employees, and that such doors do not ordinarily fly open unless improperly maintained or closed, and if you further find that the plaintiff wife did not touch said door nor otherwise cause it to open, then, in the absence of explanation, you are at liberty to infer (but are not required to do so) that the defendant was negligent with respect to closing the door before starting the act of transportation.

'You are further admonished that this instruction does not apply unless you find that neither of the plaintiffs touched said door after getting in the ambulance and before it came open in transit.' (Italics ours.)

Plaintiffs took no exception to this instruction. In fact, while stating his exceptions to the instructions, plaintiffs' counsel stated 'I feel that the instruction which the Court gave on res ipsa loquitur covers res ipsa loquitur very well, but the phraseology of these instructions [plaintiffs' requested instructions Nos. 3 and 4] perhaps make it clearer to the jury.'

Thus, instruction No. 10, as quoted supra, becomes the law of the case.

Plaintiffs argue their first two assignments of error, directed to instructions Nos. 3 and 8, by posing the question:

'Does the doctrine of res ipsa loquitur apply only to such negligence as specifically alleged?'

No special witchcraft is invoked by murmuring the Latin phrase, res ipsa loquitur. It does not cause the rules of pleading and practice to take flight. It does not remove the necessity of proof from a lawsuit. It adds nothing which is not already there.

It is not as meaningful to state 'the thing speaks for itself,' as it is to ask 'What does it say?' A case in which the doctrine of res ipsa loquitur is applicable is a circumstantial-evidence case. In it, the jury is permitted to infer negligence from an accident which ordinarily would not have occurred unless someone was negligent. The jury may make the inference of negligence or it may refuse to do so.

In Kemalyan v. Henderson, 1954, 45 Wash.2d 693, 706, 277 P.2d 372, 379, this court pointed out that on a number of occasions it has held that a plaintiff can allege and attempt to prove specific acts of negligence on the part of a defendant and still rely on res ipsa loquitur. The court said:

'This rule is subject to the qualification (already mentioned) that if plaintiff's evidence goes so far as to fully explain the cause or causes of the accident which injured him, he loses the right to rely on res ipsa, but an unsuccessful attempt to prove specific acts of negligence on the part of defendant does not deprive plaintiff of his right to rely on res ipsa.'

Dean Prosser illustrates this point by the following:

'When the plaintiff shows that he was on the defendant's train and the train was derailed, there is an inference that the defendant has been negligent, and a res ipsa case. When he goes further and shows that the derailment was caused by an open switch, he destroys any inference that it was due to excessive speed or defective track; but the inference that the defendant has not used due care in looking after its switches is not destroyed, but considerably strengthened. To say that res ipsa loquitur does not apply is to say that the weaker inference may be drawn but the stronger may not. If the plaintiff goes still further...