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District Court of Appeal, Second District, Division 1, California.


Civ. 14741.

Decided: May 08, 1945

Sullivan & Lane, George Stahlman, and Robert J. Sullivan, all of Los Angeles, for appellant. Musick, Burrell & Pinney, Howard Burrell, Anson B. Jackson, Jr., and Clayton Straub, all of Los Angeles, for respondent.

Plaintiff instituted this action on account of injuries caused, as alleged, by the carelessness of defendant in allowing plaintiff to be burned upon her arm, breast, left side and hip while she was a patient in the hospital maintained in the City of Los Angeles by defendant Lutheran Hospital Society of Southern California, a corporation.

The cause proceeded to trial before a jury and, at the conclusion of plaintiff's case, defendant moved for a nonsuit upon the ground that plaintiff ‘has wholly failed in any manner whatsoever to prove or show anything tending to establish any actionable negligence on the part of defendant.’ This motion was denied by the court. Following the completion of all the evidence offered by both parties, defendant moved the court for a directed verdict upon all the grounds urged in support of the motion for a nonsuit and upon the added grounds of proven contributory negligence, proven assumption of risk, and that the accident occurred while defendant was carrying out orders and directions given by one of plaintiff's physicians. The court also denied this motion. After submission of the cause to the jury, a verdict was returned for plaintiff in the sum of $7,500. Following the rendition of the verdict and before entry of judgment thereon, defendant moved the court for a judgment notwithstanding the verdict, basing such motion upon each and all of the grounds stated in the motions for a nonsuit and a directed verdict. Judgment was stayed pending determination of the last named motion, which was taken under submission by the court. Thereafter, the motion for judgment notwithstanding the verdict was granted and, pursuant thereto, judgment was entered in favor of the defendant. It is the correctness of such ruling that is challenged by plaintiff on this appeal.

For a proper understanding of the questions here involved, an epitome of the factual background which gave rise to this litigation is necessary. The record discloses that plaintiff, a woman approximately 60 years of age, upon the advice of her physician entered the defendant's hospital on October 8, 1942. She was put to bed and two days later was taken to the surgery, or operating room, was placed under an anesthetic and subjected to a major operation which necessitated an incision into the abdomen of approximately four or five inches. The evidence shows that the operation was a success and further reference to it need not be made because no question here involved pertains thereto, nor is any question raised as to the skill or manner in which it was performed by the surgeons. Nothing unusual occurred in the post-operative care of plaintiff until, on Monday, October 12th, her physician directed that she be given some tea to drink. At about 12:30 p.m. of that day, an employee of defendant hospital carried a tray to plaintiff's room. On the tray were a doily, a teapot containing hot water, a cup and saucer, teaspoon and teabag. According to the testimony of defendant's employee, upon entering the room, she placed the tray upon the bedside table which was about a foot away from the bed and, within a minute or two, retired from the room leaving plaintiff alone therein. Just as the nurse, who was making her rounds to make the patients comfortable for consumption of their meals, was coming out of the room adjoining that occupied by plaintiff, she noticed the corridor light over plaintiff's door flash, and, recognizing this as a signal that a patient in that room desired attention, she entered immediately and found that the teapot which had contained the hot water was on the bed with plaintiff, as was also the cup and saucer. The tray was on the table. Observing that the hot water from the teapot, which was large enough to hold two small cups of liquid, had come in contact with plaintiff's person and that there was a ‘reddened area’ on the latter's left arm, breast and side, the nurse immediately called an interne doctor, resident at the hospital and also notified one of plaintiff's physicians, the former of whom treated and dressed the burns upon plaintiff's body.

There was no direct testimony as to how the hot water was spilled on plaintiff, because, at the trial, the latter, who was the only person in the room at the time of the mishap, testified in substance that, from the time the operation upon her was completed on Saturday, October 10th, until she felt the pain occasioned by the hot water on Monday, October 12th, the only thing she remembered was ‘a faint recollection of vomiting.’ In that regard, she testified: ‘I was asleep all the time, vomiting, and they gave me shots in the arm, shots in the leg, and that is all the recollection I have of what happened.’ She testified she was fed through a tube, that there was a tube in her abdomen and a rectal tube. Plaintiff further testified that she was not alert mentally on Monday and did not know what was going on about her; that her mind was very weak; and that she was unable to move around in her bed at all up to Monday noon. She also testified that, following the operation and up to the time she was burned, she had no recollection of either of her physicians or any other person visiting her room; that she was asleep most of the time and that whenever she would awaken a hypodermic was administered. She did testify, however, that on Monday about noon she awakened and saw ‘a form at the foot of the bed looking into the mirror in the dresser’; that this ‘form’, evidently a woman, said something to her but what was said plaintiff did not know. She testified that, a few minutes thereafter, she felt ‘a terrific heat’ on her body. She looked down and saw hot water all over her side and under her arm. According to her testimony, she then screamed and two or three nurses came in.

In short, the gist of plaintiff's testimony was that she was wholly unconscious and had no recollection of anything whatever which occurred while she was in the hospital from the time she was operated on, Saturday, until after she felt the burning sensation on the left side of her body shortly after noon on Monday; that she had no period of consciousness following the burning incident on Monday, except the burning sensation, and that this absence of consciousness continued for ‘a couple of days after Monday noon.’

Another witness, a daughter-in-law of plaintiff, testified that she visited the latter at the hospital on Saturday evening following the operation, that at the time, plaintiff was asleep, and the witness testified she did not disturb her nor have any conversation with her. This witness testified she visited plaintiff again on Sunday evening about seven o'clock and inquired of plaintiff ‘how she was feeling’; that the only reply the witness received was a ‘mumbled one’ which she could not understand. She remained in the room for a short time but had no other conversation with plaintiff. The next time this witness saw plaintiff was on Monday following the hot water incident. The testimony of this witness contains no reference to appellant's mental condition nor any conversation which occurred during the last named visit.

Dr. Cory C. Ledyard testified that he was plaintiff's physician and that it was upon his advice that she entered defendant's hospital. He testified that the operation commenced at 10:10 a.m. and ended at 11:55 a.m.; that the anesthetic given was nitrous oxide, or ‘laughing gas', such as is given by inhalation in dental offices to extract teeth, and that, in addition, a spinal anesthetic was administered. The doctor testified that he visited plaintiff on the morning following the operation for about 20 minutes; that, at that time, there was a suction apparatus attached to the drainage tube in the abdomen which required adjustment. He next saw his patient on Monday, October 12th, approximately a half hour before the hot water was delivered to plaintiff's room. Her physician testified that, at that time, he conversed with her; that ‘she was feeling very well’; that ‘her color was good, she talked very alertly, she is an alert individual any way, and I couldn't help but be astonished that she was feeling as well as she was and was as bright as she was'; that at ten minutes past ten o'clock that morning plaintiff ‘received one-third grain of pantopon, which is a derivative of opium; that prior to that, at 2:50 a.m. Monday morning, plaintiff had received one-sixth grain of morphine. This witness testified that the purpose of administering narcotics to a patient following an operation was to relieve pain, and that they do not produce drowsiness. According to her physician, the narcotics administered to plaintiff from the time of the operation on Saturday until Monday noon did not affect her mentality one way or the other and did not cause her to be drowsy. Plaintiff's physician also testified that when he saw her on Monday morning her condition, both mentally and as far as the surgical wound was concerned, ‘was good.’ Her physician testified that he knew and observed plaintiff prior to the operation and before any drugs or narcotics had been administered and that he noticed no difference in her condition of mind and mental alertness on the day of the accident than that which existed prior to the operation and the administration of medication incidental thereto. This witness also testified that he visited plaintiff on Tuesday, October 13th, when for the first time he heard of the burning incident which occurred on the previous day. On this occasion, her physician testified that he had a conversation with plaintiff concerning the burns upon her body, that he made a note in the hospital chart of what she had told him, and which note reads: ‘The patient feeling very much better, and she says so. Yesterday she pulled over on herself a tray of hot tea and burned her left elbow and breast and thigh. ‘I did it myself; I was very foolish to have tried to have pulled the tray over, but they are so busy around here that I wanted to wait on myself.’' Her physician further testified that in his opinion there was nothing whatever in plaintiff's condition, physically, mentally or otherwise, which in his judgment made it dangerous or improper to place a pitcher of hot water on the table beside her bed. That to do so was ‘just perfectly safe and proper.’

Frances Muckenhirn testified that she was an employee of defendant hospital, that her duties were to supervise trays and help carry them from the kitchen to the patients; that on October 12, 1942, she carried a tray to the room occupied by plaintiff. This witness testified that as she was approaching with the tray, plaintiff asked her ‘Is that for me?’ to which she replied ‘Yes, it is,’ and that she further said ‘But you had better call the nurse to help you.’

Certain photographs were introduced in evidence, the accuracy of which was established by testimony, and which photographic evidence showed that the bedside table upon which the tray was placed was at least a foot away from and to the left of the bed, and that the surface of the table top was stationary, not less than four to six inches lower than the top of the bed on which plaintiff was lying, making no allowance for pillows.

A Mrs. Jessie S. Ruffner testified she was a registered nurse formerly employed by defendant hospital; that she was one of the nurses who attended plaintiff during the latter's stay in the hospital during October 1942 and took care of her most of the time she was there. This witness testified that when she saw plaintiff on Sunday, October 11th, her mental condition was good and her mind was clear; that she was awake and that they engaged in normal conversations. This witness was not on duty Monday, October 12th, until four o'clock, at which time she noticed that plaintiff's left side and arm were bandaged, whereupon she said ‘Mrs. Rice, what has happened to you?’ to which appellant responded ‘I burned myself.’ In response to the inquiry of the witness as to how she had burned herself, appellant replied ‘I spilled some water on me.’ Thereupon the witness inquired ‘Where was the water?’ to which plaintiff said ‘A nurse came in and set a tray with a teapot full of water and a cup and some tea on the bedside table.’ The witness asked, ‘Which table?’ and appellant replied, ‘This one,’ indicating the bedside table to the left of the bed. The witness then asked, ‘How did you get it?’ and appellant replied, ‘Oh, I just reached over and got it.’ The witness asked, ‘Why didn't you call a nurse?’ Appellant replied, ‘You girls are so busy, I hate to bother you,’ whereupon the witness said, ‘You make more trouble now than if you had called us,’ to which appellant replied, ‘I know that, but it is my own fault. No one is to blame but me.’

It was this witness who testified that, in appellant's room, there was a signal system provided, by which the patient could call nurses when wanted; that it consisted of a cord with a push button at the end and when the button was pressed it would light a bulb in the corridor over the room door and also at the nurses' station desk on each floor. The witness testified that on Saturday, Sunday and Monday, October 10th, 11th, and 12th, the push button was placed on plaintiff's pillow and was within easy reach of the latter on occasions when the witness was in the room; that there was also a buzzer which sounded at the time the lights flashed.

Another witness, Miss Emma Schaffer, testified that she is a registered nurse and was employed at defendant's hospital as supervisor of the fourth floor, on which floor the room occupied by plaintiff was located. She first saw plaintiff on Friday. She also saw her on the following day when the operation was performed, as well as after her return from surgery. The witness talked with the plaintiff on Monday morning about eight o'clock, at which time she inquired as to how she felt, receiving the reply that plaintiff felt better and desired one of the tubes removed. The witness testified she replied that the tube could not be removed until Dr. Chaffin arrived, and that when he did arrive at about nine o'clock he removed the tube. This witness testified there was nothing about plaintiff's appearance to indicate that anything was wrong with her mentality. The witness was also in the room at noon on Monday when Dr. Ledyard was there and she heard and saw plaintiff talking to the doctor. This witness testified that, following the burning incident, and as the bandaging of plaintiff was completed, she asked plaintiff how she spilled the water on herself, to which appellant replied ‘Well, I tried to help myself as I had always had to do.’ This witness testified that at no time on Monday when she saw plaintiff, did the latter appear to be drowsy and that her mental condition appeared to be normal. The witness also testified that hypodermics in the amounts and such as were administered to plaintiff merely relieved pain and did not make the patient drowsy. So far as the effect of the narcotics upon plaintiff was concerned, this witness, a registered nurse, testified that they did not seem to affect plaintiff one way or the other.

Another registered nurse, Louella Larson, who assisted in caring for plaintiff at the hospital, testified that on Monday morning, October 12th, she took plaintiff's temperature which was 99, pulse 88 and respiration 20, which she said was perfectly normal; that plaintiff was awake at that time. She further testified that she was present when Dr. Collins was dressing the burns on plaintiff's body; and that at that time her mental condition appeared to be good and not ‘different from that of any normal person.’ This witness testified that she distinctly remembered that plaintiff stated that she ‘pulled’ the teapot over onto herself.

Dr. Rafe C. Chaffin, a duly licensed physician and surgeon since 1907, testified he was employed in October 1942 by plaintiff to diagnose her condition and to perform an operation on her. This witness testified that he saw plaintiff immediately after the operation; that there was nothing about her case in the administration of drugs, anesthetics, or anything of the kind which differed from the case of any ordinary abdominal operation. He saw the plaintiff again on Monday morning between eight and nine o'clock. He testified that at that time she was awake; that he talked with her; that she was neither mentally drowsy nor ‘dopey,’ but was mentally alert. He testified that she expressed pleasure that the tube, which had been inserted to prevent vomiting by keeping the stomach continuously empty, was to be removed. This witness further testified that he observed no appreciable difference in plaintiff's mental condition at the time he saw her on Monday morning, the 12th, than was existent on the previous Friday, which was the day before the operation. He further testified that on Monday he directed the supervising nurse at the hospital to administer tea to plaintiff. This witness testified positively that in his judgment there was nothing about appellant's condition which made it dangerous to place a pitcher of hot water on the table as was done in the instant case. Dr. Chaffin testified that on the day following the burning incident he talked with plaintiff at considerable length during the course of which conversation he asked her about the burns to which she replied: ‘That is nothing. You don't worry about it. Wasn't that a foolish thing for me to do? I ought to know better than to spill tea on myself, but I didn't want to bother the nurse. I am always afraid I am causing them trouble so I tried to help myself.’ The witness remembered this conversation, he testified, because he made a note of it at the time in the hospital chart.

Dr. Chaffin also testified that following her discharge from the hospital plaintiff came to his office, November 17, 1942, for a post-operative examination, that again upon this occasion, in the presence of the doctor and two of his office assistants, plaintiff, in discussing the burns upon her body, stated that she had spilled the tea on herself because she did not want to bother the nurse in the hospital and that it was entirely her own fault, saying ‘I am old enough to know better than that but still I did it.’ This witness also testified that in plaintiff's case the narcotics administered simply relaxed her, alleviated pain, but left her mentally alert. This witness gave it as his opinion that there was nothing whatever about appellant's condition on Monday, October 12th, that caused him to feel that any danger was involved in placing a pitcher of hot water on the bedside table, and for that reason he did not suggest, nor direct, that the tea be served in any but the usual and ordinary manner practiced in that hospital, that on Monday morning ‘she was entirely conscious and alert and her judgment was normal in every way’.

Mrs. Eva White, a registered nurse, and Mrs. Vivian Schwarting, a laboratory or X-ray technician, both employed in the office of Dr. Chaffin, corroborated the latter with reference to the aforesaid conversation which took place at the doctor's office on November 17th.

Dr. Ralph A. Ferguson testified that he is a physician and surgeon licensed to practice in this state; that he assisted in the operation by giving the anesthetic, which was a spinal anesthetic with a supplementary inhalation of nitrous oxide and oxygen; that the mental capacity of the patient on the day following administration of such an anesthetic is not affected. This witness testified that he saw plaintiff about noon on Sunday, the day following the operation, at which time she was awake and alert; that she answered his questions but he could not remember details of his conversation with her. He also saw plaintiff some time Monday afternoon following the hot water incident, at which time he asked her how the burning occurred; and that, in effect, she replied ‘I very carelessly pulled the pot of tea’ or ‘cup of tea’ or ‘spilled a cup of tea on myself’; that she was ‘very much awake’ at that time and that nothing abnormal appeared to him as to her mental condition; that she conversed in a very normal conversational and intelligent manner.

There was further testimony given by nurses who saw plaintiff in the hospital on the day before, the day of, and the day after the hot water incident. They all testified in substance that she was mentally alert, conversed with them and accepted full responsibility for upsetting the hot liquid upon herself.

The witness who accompanied plaintiff to Dr. Chaffin's office on November 17, 1942, testified that she did not hear any conversation to the effect that the hot water incident was caused through plaintiff's fault, nor did plaintiff say anything with reference to accepting responsibility for the accident.

We have herein narrated the evidence as strongly in plaintiff's favor as the record will permit, and, because of the oftrepeated rule that an appellate tribunal will not interfere with the judgment arrived at by the trier of facts when there exists a substantial conflict in the evidence. we have made an extended review of the evidence. In the case of Herbert v. Lankershim, 9 Cal.2d 409, 471, 71 P.2d 220, 251, it is held that ‘this rule, however, does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence.’

The only question here involved is whether or not defendant, under the evidence, was entitled to have the court enter judgment in its favor notwithstanding the verdict returned by the jury in favor of plaintiff. The action of the trial court was proper and legal unless it can be said that there was substantial evidence tending to prove, in favor of the plaintiff, all the controverted facts necessary to establish her case. In short, a judgment notwithstanding the verdict is proper whenever, upon the whole evidence, the judge would be compelled to set aside the verdict rendered, and an appellate court would be impelled to reverse it upon appeal, as unsupported by the evidence. To warrant the court in granting a judgment notwithstanding the verdict it is not necessary that there be an absence of conflict in the evidence, but if there be a conflict, the court is not deprived of this power unless the conflict be a substantial one. To constitute such a conflict in the evidence as will prevent the trial court from rendering the decision itself notwithstanding the verdict of the fact finding body there must be more than a conflict of mere words. The conflict in the evidence must be of a substantial character which, when applied to the peculiar facts of the case, reasonably supports the verdict rendered. The correct rule is thus stated in Morton v. Mooney et al., 97 Mont. 1, 33 P.2d 262, cited with approval in Herbert v. Lankershim, supra, 9 Cal.2d 472, 71 P.2d 251:

‘While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff's case is always a question of law for the court (Grant v. Chicago, etc., R. Co., 78 Mont. 97, 252 P. 382), and, in determining this question, ‘the credulity of courts is not to be deemed commensurate with the facility or vehemence with which the witness swears. ‘It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude its judgment.’''

In the testimony words may be mere words, but evidence ‘is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact.’ Code Civ.Proc. Sec. 1823. While it is true that one of the ‘means sanctioned by law’ is to have the witness appear and give testimony orally, it has nevertheless frequently been held that the court is not bound to accept oral testimony as evidence of a fact if such testimony is inherently improbable. Davis v. Judson, 159 Cal. 121, 130, 113 P. 147; Caldwell v. Weiner, 203 Cal. 543, 546, 264 P. 1100; Staples v. Hawthorne, 208 Cal. 578, 583, 283 P. 67. Cognizant, as we are, of the rules applicable to motions for judgments notwithstanding the verdict—that the testimony must be read in the light most advantageous to plaintiff and taken most strongly against the defendant; that all conflicts must be resolved in favor of plaintiff and that he must be given the benefit of every fact pertinent to the issues involved which can be reasonably deduced from the evidence—we do not mean to hold that the trial judge may pass upon the credibility of a witness in ruling upon a motion for judgment notwithstanding the verdict, but we do hold that the applicable rule does not require the trial judge, nor an appellate court, to accept as true everything which is in the testimony of the witnesses. And we further hold in the instant case that if some of the particular testimony of the plaintiff is so inherently improbable that it is not entitled to consideration as evidence in the case and that the verdict founded thereon is consequently lacking in evidentiary support and against law, then the trial judge was justified in entering judgment for the defendant notwithstanding the verdict in the plaintiff's favor. Neblett v. Elliott, 46 Cal.App.2d 294, 305, 115 P.2d 872. To justify the submission of any question of fact to a jury, or to bind the court to a verdict rendered by a jury as the duly constituted triers of fact, there must be proof of a substantial character that the fact is as alleged. In re Estate of Bryson, 191 Cal. 521, 541, 217 P. 525.

Appellant predicates her argument that the court erred in granting defendant's motion to enter judgment in its favor notwithstanding the jury's verdict upon the contentions: First, that there is sufficient evidence to support a finding of negligence on the part of the defendant hospital; that a major abdominal operation was performed upon her on the morning of Saturday, October 10, 1942; that, following such operation and in order to ease her post-operative suffering, sedatives were periodically administered to plaintiff which affected her mentally, produced a condition of drowsiness and unconsciousness, as a result of which she was oblivious to and did not comprehend what was going on around and about her, and because of which she had no recollection of anything that occurred between the time she went to surgery on Saturday morning and the instant when she felt the pain occasioned by the hot water coming in contact with her body at noon on Monday. That notwithstanding plaintiff's helpless and unconscious condition, defendant caused ‘a dangerous instrumentality,’ to-wit hot water, to be placed approximately one foot away from her bed; and that ‘in some fashion’ the hot water was spilled upon plaintiff, causing her to suffer third degree burns. Second, that the doctrine of res ipsa loquitur is properly applied to the facts of this case and that proof of the accident carried with it the presumption of negligence.

As to the first point, it must be conceded that defendant was under the legal duty to use reasonable care for the safety and well-being of its patients and to take such precautions to shield them from injury as a reasonable person would take under the circumstances shown to exist. In placing the hot water within reach of plaintiff, the defendant was not guilty of negligence unless it can be said that an ordinarily prudent person situated as the defendant was and knowing what it knew would under all the circumstances assume the probability of injury resulting to plaintiff because of her weakened mental and physical condition. Appellant does not contend that respondent would be liable had she been mentally alert, in possession of her faculties, and voluntarily assumed to prepare and serve the hot tea to herself, in the course of which conduct she, by reason of such voluntary act, was injured. The question for determination then is whether plaintiff's condition of mind and body was such that no ordinarily careful and prudent person would have placed the hot water in a position where she could have reached it, or by her unconscious act could have spilled it upon herself. Of the relatives and friends of plaintiff who visited her at the hospital, none were called upon to testify, nor did they testify, to any mental infirmity upon her part, nor that she was not mentally alert. She alone furnished the only testimony in the record that she was unconscious during the interval elapsing from the time she left surgery on Saturday until the burning episode which occurred on the following Monday. In that regard, she was asked ‘It is your claim, if I understand you, Mrs. Rice, that you were entirely unconscious, so far as any recollection is concerned, of anything and everything which occurred while you were in the hospital from the time you were operated on until after you felt this burning sensation shortly after noon Monday, the 12th; is that correct?’ to which she answered ‘That is right.’ Plaintiff further testified that this condition continued for ‘a couple of days' after she received the burns. However, on cross-examination, plaintiff admitted a recollection of seeing some one in her room just prior to ‘feeling this burning sensation,’ she remembered that this person said something to her, but what it was she could not recall. Plaintiff also remembered that she was violently nauseated during the interval following the surgery and up to Monday, but the uncontradicted testimony of all the doctors and nurses in attendance upon her was that there was some nausea on the day of the operation and the day following, but that the ‘Lavine tube,’ which was inserted to relieve nausea, was removed on Monday, October 12th, because the nausea had ceased. This line of testimony was corroborated by entries in the hospital's daily charts. Plaintiff also testified that she remembered intravenous injections were being ‘constantly’ administered, whereas the testimony of those who gave such injections, confirmed by the hospital charts, showed that but two such injections were administered between Sunday morning and Monday noon when the hot water was delivered to plaintiff's room.

It is unnecessary to here state the testimony, heretofore narrated, of all the doctors and nurses who were in direct and constant contact with plaintiff at the hospital. Suffice it to say that this testimony, some of which was given by witnesses produced by plaintiff herself, including her own physician who operated upon her, was that on the day of the accident she was conscious, mentally alert, and appeared to fully comprehend all that was going on around and about her. All of this testimony and the entries made daily in the hospital charts at the time the events therein recorded occurred, showed that after the plaintiff came out of the stupor caused by the anesthetics administered just prior to the operation she was conscious; that her mind was clear and she was quite talkative. And even though we assume the truth of plaintiff's testimony that she knew nothing of how the accident occurred, there is not a scintilla of evidence that at any time, whether asleep or unconscious, plaintiff was tossing about in bed, restless, or waving her arms, that would suggest to the ordinarily prudent cotor, nurse or hospital attendant that serving her tea in the ordinary and usual way in which that was done at the hospital was in any manner hazardous or might result in plaintiff overturning upon herself the contents of the tray placed a foot away from her bed. There is no evidence that defendant was in possession of knowledge of any facts out of which there would arise a duty to serve the tea in any other than the hospital's usual and customary manner. Knowledge of the facts out of which a duty arises is an essential element in determining the existence of any negligence. Smith v. Whittier, 95 Cal. 279, 291, 30 P. 529. One is not bound to anticipate the unusual or what is unlikely to happen, but only what usually happens. Furthermore, the physical facts present in the instant case militate strongly against plaintiff's theory of how the mishap occurred. The uncontradicted evidence shows that the table upon which the tray was placed was approximately a foot away from the bed and several inches lower than the top of the bed clothes covering plaintiff. Following the accident some of the contents of the tray were found on the bed and some on the floor. In his memorandum opinion, rendered at the time he granted defendant's motion for judgment notwithstanding the verdict, the learned trial judge said:

‘Against plaintiff's story from which the inference might be drawn that she was either asleep or unconscious is the testimony of the nurse who brought the tray in and against the inference that she was under the influence of drugs at the time of the incident is the testimony of her own doctors that the sedatives given her were not of sufficient strength to produce sleep and that the only effect that they had was to allay pain. The physical facts shown by the uncontradicted evidence of the location and height of the table are almost conclusive evidence against plaintiff's theory of the happening of the accident. In other words, if the contents of the tray had been upset by the unconscious waving of plaintiff's arms, the contents of the tray would either have been knocked flat on the tray, or would have fallen on the floor; none of them would have been on the bed. Plaintiff's body as it lay on the bed and the location of the burns on her body point very persuasively to the fact that the contents of the tray were upset while the part of the tray containing the hot water was practically over her left side and I think it is a fair inference that after they were upset she frantically pushed the tray away from her and it fell flat on the table. In my opinion, the theory of plaintiff's case is contrary to any inference that could possibly be drawn to the effect that she was burned by an involuntary act on her part and is utterly inconsistent with the theory upon which plaintiff tried her case. The plaintiff's doctors and several nurses stated that she told them substantially that plaintiff upset the tray herself in attempting to pull the tray over so she could serve herself some tea without disturbing the nurses. Such explanation of the accident under all the evidence is the only consistent explanation in the record of what happened. Such testimony is also consistent with the notations in the hospital record and is contrary to plaintiff's statement that she knew nothing of how the accident happened, which statement is also contrary to plaintiff's own testimony as to events she relates that happened between the time she recovered from the effect of the anesthetic given her before the operation and the happening of the accident. The only picture that the evidence presents is that of an aging woman who two days prior to the accident had passed through a major abdominal operation, weak, and lying quietly in bed even when asleep and any explanation of the accident other than that supplied by plaintiff's own statement to her own doctors and to the nurses as related in their testimony is the only reasonable explanation of what happened and any other theory of what happened does violence to all the substantial evidence and one of the immutable laws of physics which, rather crudely stated, as applied to this case, is that water does not of its uncontrolled action either run up hill or bridge a gap more than a foot wide.’ (Emphasis added.)

We are persuaded that the inferences and conclusions arrived at by the trial judge were justifiable and proper under the evidence and physical facts presented herein. The defendant produced positive and direct testimony concerning plaintiff's mental condition and also testimony as to statements made to various witnesses by plaintiff as to the manner in which the accident occurred, while the most that can be said of plaintiff's testimony is that in the main, it was negative in character. It cannot be questioned that evidence of a negative character is ordinarily never as satisfactory as that of a positive character. When plaintiff's testimony is viewed in the light of the unimpeached oral and documentary evidence presented by the defendant, as well as the physical facts, it does not bear that degree of reasonableness necessary to create a substantial conflict and thereby divest the court of its power to enter a judgment notwithstanding the verdict. Furthermore, under all the facts and circumstances here present, we are impressed that the trial court was justified in declaring the testimony of plaintiff to be inherently improbable. To deprive the court of its right to exercise its power to enter judgment notwithstanding the verdict, an utter absence of conflict in the evidence, as we have heretofore pointed out, is not necessary, but a conflict, if such there was, must be a substantial one. In re Estate of Fleming, 199 Cal. 750, 754, 251 P. 637.

Appellant's second point, which is that the doctrine of res ipsa loquitur applies, cannot be sustained. One of the three essential conditions for the application of the rule is that the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687. In view of our holding that there is in the record no evidence of sufficient substantiality to support plaintiff's contention that the hot water was spilled upon her because of an involuntary action upon her part while unconscious, and that the evidence justified the trial judge in arriving at the inference and conclusion that plaintiff's injury was occasioned by her conscious and voluntary act as related by her to several witnesses to whom, as they testified, she stated following the accident, ‘Well, I tried to help myself as I always had to do * * * I spilled some water on me,’ it necessarily follows that the doctrine of res ipsa loquitur is inapplicable. In all of the hospital cases cited by respondent the doctrine was held applicable because, under the facts there present, it was shown that the patient submitted himself to the care and custody of doctors, nurses and hospitals, was rendered unconscious, and his injuries resulted from instrumentalities used in his treatment.

We do not discuss other questions raised for the reason that, upon the considerations discussed, we have concluded that the judgment of the trial court must be sustained. It is so ordered.

Judgment affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.