SCOTT v. BURKE

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District Court of Appeal, Second District, Division 3, California.

SCOTT v. BURKE.

GERRY v. BURKE.

Civ. 18300, 18302.

Decided: December 28, 1951

Mark F. Jones, Los Angeles, for appellant Daniel Scott. Knight, Gitelson & Ashton and Robert R. Ashton, Los Angeles, Samuel A. Rosenthal and Leonard G. Ratner, Los Angeles, of counsel, for appellant Samuel Gerry. Parker, Stanbury, Reese & McGee, Los Angeles, for respondent.

These two cases involve the same defendant and the same accident and were consolidated both for trial and appeal. From a judgment after verdict for defendant, plaintiffs Gerry and Scott appeal.

At an early daylight hour on May 24, 1948, a 1947 Cadillac driven by defendant left the Nogales-Tuscon highway some 21 miles south of Tuscon, Arizona, injuring all the occupants. Defendant was rendered unconscious and there was evidence that he suffered retrograde amnesia and had no recollection of the circumstances of the accident. The other five occupants, including plaintiffs, were asleep at the time of the accident. The party was returning from Guaymas, Mexico. Defendant took over the driving at Nogales and drove until the accident occurred. Officer Keenum of the Arizona Highway Patrol who came on the scene at 6:40 a. m. testified: The northsouth highway was paved, two lane, level and straight. There were tire skid marks starting in the northbound lane and moving across the highway and off on the west side; they left the highway at a point where a dirt side road intersected from the west; on the pavement the skid marks were 78 feet long; the car came to rest 38 feet to the west of the highway but approximately 250 feet north of the point where the skid marks started; open flat grazing and farming country bordered the highway on both sides. The related testimony of the officer, reinforced by photographs of the locale, constitutes the sole evidence as to the circumstances surrounding this accident.

We are presented with a case where the jury was required to determine what happened when none of the participants could shed any light on that question. The jury returned verdicts for defendant and the appealing plaintiffs attack the judgment entered on the grounds of erroneous instructions.

At the request of the plaintiff in each case the court gave an instruction on the doctrine of res ipsa loquitur. At the request of the defendant the court instructed that if the jury should find that as the result of the shock of the accident the defendant's memory was so impaired that he became and remained unable to remember and testify as to his own conduct and other facts of the accident, a presumption arose that he was obeying the law and acted as an ordinarily prudent person would have in the same circumstances. Neither instruction is criticized as to form. Defendant does not contend that the res ipsa loquitur instruction was inapplicable under the evidence and we are not called upon to consider that point. Plaintiffs concede that if this were an ordinary case the evidence of defendant's loss of memory would have justified an instruction that he should be presumed to have been obeying the law and exercising due care. But they say that this presumption is in conflict with the inference of negligence which was to be drawn under the res ipsa loquitur instruction, that the presumption of the exercise of due care does not exist in a res ipsa loquitur case, and that it was error for the court to give the defendant's instruction. Their contention finds support in the case of Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311. The Waite case was decided on the authority of Smith v. Hollander, 85 Cal.App. 535, 259 P. 958 and Moeller v. Market St. Ry. Co., 27 Cal.App.2d 562, 81 P.2d 475. In Pezzoni v. City & County of S. F., 101 Cal.App.2d 123, 124, 225 P.2d 14, 15, the court stated: ‘The courts have held that in a res ipsa case it is not proper to give an instruction on the presumption of care.’ (Citing the three cases above named.) The Waite case involved injuries claimed to have been suffered by the sudden jerking of a street car. The motorman was not living at the time of the trial. The court gave an instruction which substantially stated the doctrine of res ipsa loquitur. On appeal from an adverse judgment the defendant insisted it was prejudicial error not to instruct as to the presumption of the use of ordinary care by the motorman. It was contended that he was the only one who could have explained the cause of the movement of the street car. The court said, 56 Cal.App.2d at pages 201, 202, 132 P.2d at page 317: ‘We do not agree with defendant's statement that the deceased motorman was the only one who could have explained the cause of the sudden jerking of the street car. The difficulty in obtaining other witnesses does not excuse the absence of such evidence if it could have been procured. However, assuming that the motorman was the only person who could have testified to the cause of the street car's movement, or that he might have accounted for it by some sudden emergency such as the presence of a child on the track, as the appellant argues, the law appears to be well settled that instructions embodying the presumption of due care are improper in a case where the rule of res ipsa liquitur applies.’ The latter statement is found in the Smith v. Hollander, Moeller v. Market St. Ry. Co. and the Pezzoni v. City & County of S. F. cases. In the first two the evidence of the defendant was explanatory of the accident and there was no evidence of inability to produce evidence for the defense. Consequently an instruction on presumed due care would have been improper. Ford v. Chesley Transportation Co., 101 Cal.App.2d 548, 552, 225 P.2d 997. The Pezzoni case was one of injury to a passenger on a street car. It does not appear that the operators of the car had not testified. The verdict was for the defendant; a new trial was granted; defendant appealed and the order was affirmed. The jury had been instructed on res ipsa loquitur and the presumption of ordinary care. The ground of the affirmance of the order granting a new trial was alleged error in giving the instruction on the presumption of care, the court saying 101 Cal.App.2d page 124, 225 P.2d at page 15: ‘The jury was thus faced with the metaphysical responsibility of weighing a presumption of care against an inference of negligence.’ We fully appreciate the court's reluctance to depart from what had previously been said upon the subject and thus place juries under this ‘metaphysical responsibility.’ But we are convinced that in the present state of the law in California situations will occasionally arise when the jury will have that responsibility. We do not believe that it was error in the present case for the court to give both instructions, and this despite our great respect for the wisdom of the judges who have thought otherwise.

Settled rules of evidence may not be disregarded and a defendant deprived of a statutory right because of the difficulty jurors would encounter in determining the relative weight of an inference that a thing is black and a presumption that it is white. And where both the inference and the presumption exist we do not see how as a matter of law one can dispel or outweigh the other. In the field of fact we suppose that a jury in order to escape the problem of deciding which of two conflicting forces has the greater weight will find some corroborating circumstance to tip the scales one way or the other. Be this as it may, a defendant who through loss of memory is unable to give an account of his conduct is no less entitled to the benefit of the presumption that he exercised ordinary care than is the plaintiff entitled to the benefit of the inference of defendant's negligence when the res ipsa loquitur rule is properly invoked. After all, the force of the res ipsa doctrine is only to make out a prima facie case of negligence. Such a case, of course, can be, and ordinarily is made out by evidence independently of the res ipsa rule. In either case the burden is upon the defendant to meet or overcome the plaintiffs' case. If the res ipsa rule does not apply, and the defendant qualifies for the benefit of the presumption rule, he is entitled to it and the jury must be so instructed. The presumption must be weighed against the strength of the plaintiffs' evidence. Nothing short of conclusive evidence of negligence which would justify a directed verdict against him can deprive such a defendant of the benefit of the presumption. Why, then, should a mere inference of his negligence be given that effect. It only calls for an explanation by the defendant, which may or may not be deemed sufficient by the jury to meet or overcome the inference. The presumption of the exercise of care is evidence, and it must remain in the case, since the inference of negligence under the res ipsa rule may be rebutted by that which is evidence, whatever its type or character. If the presumption is not available to a defendant to rebut a prima facie case of negligence it serves no purpose at all.

It must be remembered that when the presumption of care is properly invoked by a defendant it is purely by way of defense. It is not in the case to interfere with the operation of the res ipsa rule to make out a prima facie case for the plaintiff. But in determining the weight of the evidence the trier of facts must weigh it against the inference of negligence just as he must weigh it against the spoken word of the plaintiffs' witnesses.

The present case was a proper one for an instruction on the presumption of the use of care. The verdict in favor of the defendant strongly suggests that the jury believed defendant was confronted with an emergency of some sort. It could be reasoned that there must have been an extraneous cause for the defendant's leaving the northbound lane, applying his brakes so as to cause the car to skid on the pavement for 78 feet, and to travel off the highway for approximately another 175 feet. Since it was impossible to know the nature of the cause, resort to the presumption would have been reasonable and just. It did not explain the cause, but it tended to confirm the supposition that there was a cause, other than the pure negligence of the defendant. We believe it was a typical case for practical application of the presumption.

Appellants also insist that it was error to give defendant's instruction on unavoidable accident. We cannot agree. Properly understood, the rule as to unavoidability relates an accidental occurrence to a cause not within the control of the parties. Were it not so, unavoidability would be involved in every case of claimed negligence. Each party would claim the accident was due to the negligence of the other and therefore unavoidable as to himself in a nonlegal sense, and the rule of unavoidability would be without legal significance. As previously stated, the evidence as to the movement of the car suggested the occurrence of some emergent condition beyond control of the defendant, which caused him to immediately take some action that he would not otherwise have taken. The instruction properly directed attention to this feature of the evidence. If the jury believed that, in a reasonable effort to cope with a condition beyond defendant's control, leaving the highway was unavoidable, it would follow that the accident itself was legally unavoidable. It was not error to give the instruction.

What we have already said is pertinent to the contention that the evidence fails to support the verdicts. While it is true that in a res ipsa loquitur case a defendant, in order to prevail, must produce evidence which is found to have weight equal to that of the inforence of his negligence, the fact that he is under a disability which renders it impossible for him to give an explanation does not deprive him of a defense against the charge. He may rely upon the presumption as evidence. We need not theorize as to what a court or jury should do when a necessary inference and a disputable presumption come face to face, each without corroborative support in the circumstances in evidence. In the present case the presumption of due care has some support in the evidence, produced by plaintiffs, that defendant made an effort to bring his car to a stop before it left the highway. Plaintiffs' claim that under the res ipsa loquitur rule verdicts should have been directed in their favor because of defendant's failure to give evidence as to his conduct is clearly untenable.

The judgment in each case is affirmed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.