CROWE ET AL v. MCBRIDE

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District Court of Appeal, Fourth District, California.

CROWE ET AL. v. MCBRIDE.

Civ. 2869.

Decided: May 26, 1944

Harry P. Sweet, of San Diego, for appellants. Gray, Cary, Ames & Driscoll, of San Diego, for respondent.

This is an action for damages. Mrs. Crowe suffered from arthritis and neuritis and at frequent intervals over a period of four years Dr. McBride had been giving her treatments in which he used large infrared heating lamps. On December 6, 1940, while she was taking one of these treatments the globe of the lamp suddenly exploded and parts of the hot glass fell upon her body, causing the injuries of which complaint is made.

The complaint alleged that the defendant “did not use due and proper care and skill” in giving this treatment and that he “so carelessly and unskillfully employed, manipulated, operated and controlled the appliances and apparatus, particularly the electric lamps, used in and about said treatment as to seriously, painfully and permanently injure” this plaintiff.

The evidence is very meager. Mrs. Crowe testified that on this occasion she laid on a table with her back exposed; that she was supposed to have a 20 minutes light treatment; that it was a rather large lamp “something on the order of one of those”, indicating a light globe in the courtroom; that the defendant fixed the light in a position about two and one–half feet above her body; that he then left, leaving her alone in the room; that after she had been in this position about 15 minutes the light globe exploded without warning; and that the hot glass fell upon her body.

The defendant, called by the plaintiffs under section 2055 C.C.P., testified that this lamp was an infrared deep therapy lamp; that the globe was a General Electric 1000–watt bulb; that he had made no inspection of the globe and could make none, other than turning it on to see if it was working; that he did not know what caused the globe to explode; that he had never heard of one exploding before; that there was no defect in the globe which was noticeable; that he had had globes of this type burning continuously for as much as seven hours without trouble; that there are hundreds of lamps of this type in use; that there are probably 150 or 200 in San Diego; that he frequently used this same lamp ten or twelve times a day; that the bulb in question was a standard one in general use; and that no manufacturer, so far as he knew, had ever theretofore recommended the screening of such lamps as a precautionary measure.

At the close of the plaintiffs' case the court granted the defendant's motion for a nonsuit and from the ensuing judgment the plaintiffs have appealed.

As the appellants state, “the sole question involved concerns the applicability of the doctrine of res ipsa loquitur”. The question to be decided is whether or not the fact that this lamp globe exploded so speaks for itself as to justify an inference that the explosion occurred because of some negligent act on the part of the respondent.

The first point raised is that a plaintiff is not bound by testimony given under section 2055 C.C.P., and that the evidence given by the respondent may not be considered in passing upon this appeal from a judgment based upon a nonsuit. For present purposes, at least, this may be conceded.

It is next contended that the facts here appearing call for the application of the doctrine of res ipsa loquitur. It is first argued that no proof of a special standard of care was here required; that this is one of that class of malpractice cases in which the acts done are so patently negligent that no expert testimony is required; and that in that class of cases the doctrine of res ipsa loquitur is applicable and may be relied upon. In support thereof the appellants cite Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; Ragin v. Zimmerman, 206 Cal. 723, 276 P. 107; Moore v. Steen, 102 Cal.App. 723, 283 P. 833; Brown v. Shortlidge, 98 Cal.App. 352, 277 P. 134; and Bence v. Denbo, 98 Ind.App. 52, 183 N.E. 326. In these cases, respectively, a sponge was left in a patient during an operation, burns were suffered from too long or improper exposure to an X–ray machine, a surgeon while removing tonsils had knocked out one of the patient's teeth, and an X–ray machine had been so handled that it was permitted to fall upon the face of the plaintiff. In these cases, no proof of a special standard of care was required and the doctrine of res ipsa loquitur was held applicable.

The appellants then argue that this doctrine is applied in cases where injury has been caused by mechanical equipment which is under the exclusive control of the defendant, citing cases. In Chauvin v. Krupin, 4 Cal.App.2d 322, 40 P.2d 904, 906, the plaintiff was burned while being given a permanent wave in a beauty shop. The court there said: “The injury was one which in the natural course of things would not have cocurred had defendants used due care, and plaintiff was therefore entitled to recover, unless the defendants offered a satisfactory explanation to overcome the presumptive evidence of their negligence.” In Helms v. Pacific Gas & Elec. Co., 21 Cal.App.2d 711, 70 P.2d 247, the plaintiff was injured while standing on a sidewalk by a falling portion of the glass globe of an electrolier. It was held, in effect, that the danger could have been known by the defendant and that the question of whether proper inspection had been made was one for the jury. In Windas v. Galston & Sutton Theatres, 35 Cal.App.2d 533, 96 P.2d 170, the injury was the result of a block of plaster falling from the ceiling. In holding the doctrine of res ipsa loquitur applicable the court there observed that plaster does not ordinarily fall from a ceiling if proper care is used to see that the ceiling is safe.

In these and many other cases it is pointed out that the res ipsa loquitur doctrine is applicable where it appears that the accident is of a kind which does not ordinarily occur in the absence of negligence on the part of the one having the management or control of the thing which caused the injury. The doctrine is further based upon the theory that the defendant, having charge of the instrumentality in question, either knows the cause of the accident or had a means of knowledge in that connection which was superior to that possessed by the injured party. Connor v. Atchison, Topeka & Santa Fe R. Co., 189 Cal. 1, 207 P. 378, 26 A.L.R. 1462. But, as said in Johnson v. Ostrom, 128 Cal.App. 38, 16 P.2d 794, 795:

“The converse of this rule is likewise true. If the evidence affirmatively shows the operator or manager of the instrumentality by means of which the injuries are inflicted has no superior knowledge or by the exercise of reasonable care is unable to secure information regarding the cause of the accident, or the evidence establishes the fact that the complainant possesses all the knowledge or information thereof which is reasonably accessible to the operator of the machine, then the doctrine of res ipsa loquitur has no application.”

In the instant case, there was no evidence tending to show why this light globe exploded or tending to show that the accident was one which, according to common experience, would not ordinarily occur except through some fault of the respondent. In other words, disregarding any explanation offered by the respondent, there was no evidence justifying any inference that any amount of care which might have been exercised by the respondent would have prevented the explosion or that he failed to use proper care. In examining him under section 2055, C.C.P., some attempt was made to ascertain whether or not he had inspected this light globe. If we disregard his testimony in this respect there is nothing in the evidence or in common experience which would justify an inference that an inspection could have been made which could have been of any avail in disclosing any defect which might have been expected to cause such an explosion. As is well known, such a light globe is a sealed unit which cannot be inspected in any manner which might be material here. As this court said in O'Rourke v. Day & Night W. H. Co., 31 Cal.App.2d 364, 88 P.2d 191, 194: “The article in question, the safety pilot, came to the respondent as a sealed unit. Its very nature precluded an internal inspection and any such inspection would have necessarily destroyed the adjustment of its parts, which was essential to its operation.”

The respondent possessed no knowledge insofar as anything which caused this accident is concerned which was superior to that possessed by Mrs. Crowe. There is nothing in common experience which would suggest that the explosion which here occurred was one which would not have taken place except for the negligence of the respondent, and it may not even be said that the respondent had the management or control of the instrumentality in the sense that he had it within his power to control anything which caused the explosion. The complaint alleged that the respondent so carelessly and unskillfully used, operated and controlled this electric lamp that he caused the injuries to Mrs. Crowe. There is no evidence to support that allegation and under the circumstances which here appear no inference is possible that the explosion occurred only because of negligence on the part of the respondent, and the doctrine of res ipsa loquitur is not applicable. Scellars v. Universal Service, 68 Cal.App. 252, 228 P. 879. As was said in Dorswitt v. Wilson, 51 Cal.App.2d 623, 125 P.2d 626, 627: “There is no room in this case for the application of the res ipsa loquitur doctrine. That is only a rule of evidence raising an inference of negligence from proved facts and not an independent ground of liability.”

Appellants' last point is that the inference of negligence arising from the doctrine of res ipsa loquitur could not be disregarded by the trial court. This is sufficiently answered by what we have already said. Where the doctrine is not applicable no such inference arises.

Although the appellants state that the sole question here presented is the applicability of the doctrine of res ipsa loquitur they include in their opening brief certain evidence relating to the use of a screen on such a lamp. Mrs. Crowe, having testified that she had taken these treatments on many occasions was asked whether there was “any difference between this light and the other lights.” She replied: “Only that the others have screens on and this didn't have any screen at the time.” The respondent, during his examination, explained that at times he used copper screens on such lights for the purpose of changing the effect of the rays, that before the accident in question he had used such screens only for that purpose and that since the accident he has used them for a protective measure.

It may first be observed that this phase of the case has no relation to the doctrine of res ipsa loquitur. Any possible effect of this evidence does not go to the cause of the explosion, but is in the nature of an attempt to show a particular manner in which the respondent was negligent, that is, in failing to use a screen for the purpose of lessening the damage. Again disregarding any explanatory evidence given by the respondent, the evidence of plaintiffs in this regard is not sufficient to show negligence on the respondent's part. There was no evidence that such a lamp had ever previously exploded and none justifying the inference that the respondent should have anticipated such an occurrence, or that he should have used such a screen. It is in no way claimed that the lack of a screen caused the explosion and there is no evidence justifying the inference that the presence of any screen, which would not have interfered with the use for which the lamp was intended, would have even reduced the amount of injury suffered by Mrs. Crowe. On this phase of the case it was incumbent upon the appellants to produce sufficient evidence to support the allegations of their complaint, and this they did not do.

The judgment is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.