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


Civ. 13075.

Decided: April 28, 1942

LeRoy M. Edwards and O. C. Sattinger, both of Los Angeles, for appellant. Earl E. Howard, of Hollywood, for respondent.

From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries resulting from alleged negligence, defendant appeals. There was substantial evidence introduced at the trial from which the jury could have found the following facts:

Defendant operated and maintained a 6–inch gas main in the Pacific Palisades area including a main on Friends Street. The main was located 30 inches below the surface of Friends Street and the service pipes which took off from the top of the main were about 2 feet beneath the surface of the ground.

The gas company received notice from the city of Los Angeles that a sewer line was going to be placed in the Pacific Palisades area. Immediately defendant began an inspection of its gas pipes, making repairs where necessary. It found that the work on its pipes on Friends Street had been properly done and that the main and service pipes were in good condition.

About July 5, 1939, the sewer contractors commenced their work in the area under the direction of plaintiff who was in full charge of the work. The ditch work on Friends Street took place in September of 1939, which was after defendant had completed an inspection of its 6–inch mains. The sewer contractors used an Austin mechanical digging machine and one of the employees of the sewer contractor testified that the trenching machine struck a 2–inch service pipe of defendant company while they were working on Friends Street. After the accident hereinafter described it was found that this service pipe was bent and at its connection with the 6–inch main the threads were broken, thereby permitting gas to escape and seep into the adjacent territory, including the manhole in which plaintiff was injured.

On November 2, 1939, plaintiff, while inspecting the sewer line preparatory to an inspection by the city, entered a manhole owned by the city and with a hammer and chisel started to chip concrete off the sewer pipe in the manhole. After he struck his chisel five or six times an explosion occurred resulting in serious injury to plaintiff.

Defendant relies for reversal of the judgment on this proposition, among others:

The trial court committed prejudicial error in refusing at defendant's request to instruct the jury as follows:

“Where it is shown from the evidence that an accident may have happened from one of two or more causes, for one of which the defendant is liable and for the other or others of which it is not liable, then there can be no recovery as against defendant because you are not allowed to speculate or guess as to which of the two or more causes produced the accident. If, from the evidence, it is equally probable that the accident may have resulted from the negligence, if any, upon the part of the defendant, or from the acts of some third person over whom defendant had no control and whose acts it had no reason to anticipate, then you cannot speculate or guess as to whom produced the accident, and your verdict must be for the defendant.” (Underscoring added.)

“If you should find that the acts or omissions which caused natural gas to escape (if you find that natural gas of the defendant company did escape at the time and place here involved) were the acts of other persons than the said defendant or its agents or employees, and that such acts of such third persons, independently of any negligence on the part of this defendant, caused the injuries received by the plaintiff, then your verdict must be for the defendant.” (Underscoring added.)

“Before you can return a verdict against defendant it must appear from a preponderance of the evidence that said defendant was guilty of negligence which proximately caused or contributed to the damage alleged in the complaint to have been sustained by the plaintiff. If you find by a preponderance of the evidence that the accident or explosion was solely and proximately caused by a person or persons over whose acts defendant had no control. you must return a verdict in favor of defendant.” (Underscoring added.)

“Defendant was not, at the time and place here in question, an insurer of the person of the plaintiff, or of anyone else, and was only liable to the plaintiff in the event that some negligent act or omission on its part proximately caused his injuries. Accordingly, if you find by a preponderance of the evidence that some person, other than said defendant, interfered with defendant's gas mains and pipes so as to cause the same to leak or allow or permit of the escape of gas therefrom, and that defendant did not, or in the exercise of ordinary care could not have had notice of the fact that gas was escaping therefrom in reasonable time to permit it to repair or remedy the cause of the leak (if you find such to be the fact) and such escaping gas proximately caused the injuries sustained by plaintiff, then your verdict must be in favor of the defendant.” (Underscoring added.)

This proposition is tenable. The trial judge did not give any instructions to the jury upon defendant's theory of the case as requested by defendant in the instructions set forth, supra.

The following rules are applicable to the instant case:

(1) A defendant is not liable for injuries resulting solely from acts of a person or persons other than the defendant, its agents, or employees.

(2) A litigant is entitled to have the jury instructed upon any theory of the case which is based upon the pleadings and which finds substantial support in the evidence. (Bickford v. Pacific Electric Ry. Co., 120 Cal.App. 542, 548, 8 P.2d 186; Raymond v. Hill, 168 Cal. 473, 479, 143 P. 743.)

(3) The failure to give a requested instruction relative to a pleaded issue which finds substantial support in the evidence constitutes prejudicial error. (Stanton v. French, 83 Cal. 194, 196, 23 P. 355; 24 Cal.Jur. (1926), 833, § 96.)

Applying the foregoing rules to the facts of the instant case, we find from the evidence that there was testimony which would have sustained a finding of the jury that the gas which found its way into the manhole in which plaintiff was injured escaped as a result of the damage which a mechanical ditch digger, operated by the sewer contractor, made when it struck defendant's service pipe located on Friends Street. If this was true, obviously defendant was not liable for the injury which plaintiff received. Defendant having requested proper instructions upon this theory of the case as set forth above, it was prejudicial error for the trial judge not to give such instructions or their equivalent.

The doctrine of res ipsa loquitur is not applicable to the facts of the instant case, for the reason that the manhole in which plaintiff received his injury was not under the control of the defendant, the rule being established in California that the doctrine of res ipsa loquitur is inapplicable unless the instrumentality which causes the injury is under the exclusive control of the party against whom the rule is invoked. (Hohnemann v. Pacific Gas & Electric Co., 35 Cal.App.2d 597, 603, 96 P.2d 350.)

For the foregoing reasons the judgment is reversed.

McCOMB, Justice.

MOORE, P. J., and HANSON, Justice pro tem., concurred.

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