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


Civ. 15357.

Decided: January 12, 1953

Campbell, Hayes & Custer, San Jose, W. R. Dunn, Burlingame, for appellant. Rettig & Dunn, San Francisco, for respondent.

From a judgment entered on a $7500 verdict in favor of plaintiff in a personal injury action, defendant appeals.

Questions Presented.

Instructions. (1) Res ipsa loquitur. (2) Speed. (3) Contributory negligence.


As defendant is not challenging the sufficiency of the evidence to show negligence on the part of defendant (other than as affected by the application of the alleged improper instructions), or to support the amount of damages awarded, it is not necessary to detail the evidence. Plaintiff testified that she was injured by the sudden stopping of defendant's bus in which she was riding. Defendant's position in the trial court was (1) that it was not negligent; (2) that no accident occurred at all; and (3) that plaintiff's injuries were the result of a prior accident or another occurrence.

Plaintiff testified that about half a block from the street where she desired to alight she rang for a stop and got up. She stood at the top of the stairwell on the right side of the driver holding on to a vertical bar with her left hand and more or less facing the side of the bus. She had her right arm around a large shopping bag containing several packages. The bus was going approximately 30 miles per hour. In that vicinity the posted signs say 25 miles per hour. About 100 to 150 feet from the regular bus stop the bus suddenly stopped. Plaintiff was thrown forward, and her lower back struck the front of the bus. She thought that she struck the front horizontal rail. The driver said, ‘That darned fool will kill himself and someone else, too.’ The answer to the driver's inquiry she said she did not think she was hurt. However, she went straight home and to bed as she was suffering a great deal of pain. Defendant introduced evidence which had it been believed by the jury would have supported a finding that there was no such accident and that plaintiff's condition was otherwise caused.

(1) Res Ipsa Loquitur.

Defendant concedes that it was proper for the court to instruct on the doctrine of res ipsa, but contends that the instruction given was erroneous. ‘Now, from the happening of an accident such as involved here, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contradictory evidence, it warrants a verdict for the plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that it, in fact, exercised the utmost care and diligence, or that the accident occurred without being proximately caused by any failure of duty upon it, the bus' part. As applied to a common carrier, such as the defendant San Jose City Lines, Inc., the word ‘negligence’ wherever hereafter used in the instructions, means any breach of duty towards a passenger, evidence of which has been received in this trial.'1

Defendant contends, first, that the italicized portion of said instruction denied defendant due process of law since it violated defendant's right to a jury trial in assuming that an accident had occurred. This instruction has been considered by courts in several cases and upheld, even though criticized in some of them. In Prunty v. Allred, 73 Cal.App.2d 67, 165 P.2d 935, it was held that under the facts of the case it was not prejudicially erroneous. This instruction is taken from B.A.J.I.2 It is almost identical with the one upheld in Freitas v. Peerless Stages, Inc., 108 Cal.App.2d 749, 239 P.2d 671, 677, a case where, as in ours, it was contended no accident had occurred. There, after the words ‘From the happening of the accident involved in this case’ appeared ‘as established by the evidence, there arises an inference * * *.’ The instruction here was the same except that it left out ‘as established by the evidence’. The omission of these words makes no substantial difference between the two instructions. In the Freitas case the same objection was made as defendant makes here, namely, that the instruction takes from the jury ‘the question of whether or not the accident to respondent occurred at all, but improperly assumed the existence of such an accident.’ 108 Cal.App.2d at page 757, 239 P.2d at page 676. As to this contention, the court said, 108 Cal.App.2d at page 757, 239 P.2d at page 676: ‘While the instructions complained of could undoubtedly have been clearer, the difficulty is that appellant failed to request that the instruction he now claims it was error to omit should have been given to the jury. In the absence of a request for clarification, appellant is in no position to complain.’ Practically the same instruction was approved in Dieterle v. Yellow Cab Co., 53 Cal.App.2d 691, 128 P.2d 132, and in Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313, although this particular point was not raised against it. As said in the Freitas case, supra, the instruction could have been clearer. However, a reading of all the instructions demonstrates that the jury could not have been misled into believing that by the instruction the court was telling them an accident had occurred or that it was taking that issue away from the jury. For example, after stating that defendant had denied that plaintiff was injured while riding in the bus the court said, ‘This case therefore presents an issue as to whether or not an accident alleged by the plaintiff occurred’ and ‘the burden is on the plaintiff to prove by a preponderance of the evidence that an accident occurred as she claimed. If plaintiff in this case has failed to prove by a preponderance of the evidence that an accident occurred as she claimed, then of course it would be your duty to return a verdict for the defendant.’ In Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344, it was contended that instructions on res ipsa misled the jury away from the defenses that the plaintiff was injured by a bottle of different brand than defendant's. The court held, in effect, that the instructions as a whole show that the jury could not have been misled.

The second contention is that the instruction directed rather than permitted the jury to infer negligence. In Dieterle v. Yellow Cab Co., supra, 53 Cal.App.2d 691, 128 P.2d 132, 134, almost the reverse of this contention was made concerning the same instruction. There the plaintiffs contended that the words ‘warrants a verdict for the plaintiffs' emasculated the instruction by making the drawing of the inference permissive rather than mandatory. The court considered the instruction along with other instructions and held, in effect, that the drawing of the inference is mandatory, saying, 53 Cal.App.2d at page 698, 128 P.2d at page 135: ‘It thus appears from the whole context of the instructions above referred to, that the direction to the jury, relative to the inference, was that the verdict should be for plaintiffs if the inference of negligence to which plaintiffs were entitled under the doctrine of res ipsa loquitur was not rebutted or overcome by defendants.’ (Italics not added.)

The editors of B.A.J.I.1950 Supp. take the position in their comments on page 244 that the instruction on res ipsa should be given only when the judge can hold as a matter of law that ‘the thing does speak for itself’ and that the inference of negligence ought to be drawn. The cases dealing with the instruction, other than the Dieterle case, supra, do not agree with this statement. Among others holding that the inference is permissible rather than mandatory are Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 247 P.2d 344; Rose v. Melody Lane, 39 Cal.2d 481, 247 P.2d 335.

In Freitas v. Peerless Stages, Inc., supra, 108 Cal.App.2d 749, 239 P.2d 671, this court, considering the same instruction, held that while the words ‘there arises an inference’ might be interpreted to mean that the inference is compulsory, yet taken with the other instructions its more reasonable construction was that the inference was permissive and not mandatory. In Scott v. Burke, supra, 39 Cal.2d 388, 247 P.2d 313, this instruction was impliedly approved, although not discussed.

Defendant attacks the instruction upon the ground that the portion of the instruction to the effect that the jury ‘should weigh any evidence tending to overcome that inference’ etc., told the jury that they should consider other evidence only for the purpose of determining its weight against ‘the court made inference’ and not in connection with the initial question as to whether the sudden stop might have been due to the fault of a third person. This is based upon plaintiff's testimony that the bus driver made a remark which indicated that his sudden stopping of the bus might have been due to whomever he meant when he said, ‘That darned fool will kill himself and someone else, too.’ For the reasons above stated, the instruction did not do so. Moreover, the fact that a third person was involved in the accident, if any one was, would not prevent the application of the doctrine of res ipsa in a carrier case. Burke v. Dillingham, 84 Cal.App. 736, 258 P. 627; Sloan v. Original Stage Line, Inc., 124 Cal.App. 317, 12 P.2d 465.

William L. Prosser in his illuminating article ‘Res Ipsa Loquitur in California,’ 37 Cal.Law Rev., p. 183, points out that in the earlier common carrier cases in California the doctrine of res ipsa was not mentioned. They simply held that the carrier had the burden of proving by a preponderance of the evidence that the injury was not caused by its fault. The first mention of the doctrine in a carrier case was in 1898, in McCurrie v. Southern Pacific Co., 122 Cal. 558, 55 P. 324.3

In Moeller v. Market Street Ry. Co., 27 Cal.App.2d 562, 81 P.2d 475, a carrier case, it was held that a res ipsa loquitur instruction which stated that a presumption instead of an inference of negligence arose, while erroneous, was not prejudicially so. Waite v. Pacific Gas & Elec. Co., 56 Cal.App.2d 191, 132 P.2d 311, was also a carrier case. Pezzoni v. City & County of S. F., 101 Cal.App.2d 123, 225 P.2d 14, was a case where the accident was substantially the same as that testified to by the plaintiff here. The giving of instructions on res ipsa loquitur was approved although there was no discussion of the form of the instructions.

As we said in the Freitas case, the instruction could have been clearer. While here, for the reasons aforesaid, we find no prejudice in the giving of this instruction, it nevertheless is a dangerous one to give, particularly in a case where, different than here, a common carrier is not involved. It does leave open the possibility that it might be contrued to mean that the court is stating that an accident happened and that the inference is compulsory. Moreover, the phrase ‘that it is incumbent upon the defendant to rebut the inference’, etc., is uncertain. The instruction should not be used. As said by Prosser, p. 231, the type of instruction on this subject in Juchert v. California Water Service Co., 16 Cal.2d 500, 106 P.2d 886, is ‘simple and comprehensible to the ordinary citizen; it appears to say everything that is needed and avoids baffling the jury with the procedural complications.’

(2) Speed.

After instructing that the speed of a vehicle on the highway, considered as an isolated fact and simply in so many miles an hour is not proof of negligence nor of the exercise of ordinary care, and that whether that rate of speed is a negligent one is a question of fact depending upon all the surrounding circumstances, the court gave the basic speed law, Veh. Code, § 510: ‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.’ It also instructed that in a residence district a speed in excess of 25 miles per hour would be prima facie unlawful but that a violation of law was of no consequence unless it was the proximate cause of an injury found to be suffered by plaintiff. Defendant contends that instructing that a violation of the basic speed law is negligence invades the province of the jury and violates section 513, Vehicle Code. Section 513 merely declares that a violation of any prima facie speed limit declared in section 511 does not establish negligence as a matter of law, but requires that it be established as a fact that the operation of the vehicle at such excess speed constitutes negligence. It is obvious that there is no conflict between the two sections. Read together they establish that speed in excess of any prima facie speed limit is not negligence per se but if the speed, whether greater or lower than such limit, is greater than reasonable or prudent under the conditions then existing it then constitutes negligence. We fail to see how this issue was taken away from the jury by these instructions. See Rednall v. Thompson, 108 Cal.App.2d 62, 239 P.2d 693; Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 587, 177 P.2d 279; Jones v. Fat, 86 Cal.App.2d 823, 826, 195 P.2d 933. The statement ‘if it is the proximate cause of the injury complained of’ in view of all the instructions given does not assume the occurrence of the injury.

Defendant attacks section 510 on the ground that stating ‘a speed greater than is reasonable or prudent’ gives no tangible measure of care of speed and leaves it to the whim of the jury to determine what is reasonable or prudent. In view of the years of defining negligence as relating to what a prudent person would or would not do, in instructing that guilt in a criminal case must be beyond a reasonable doubt and that due care is based upon what an ordinarily prudent or reasonable person would do on not do, it is rather late now to attack the measure of speed set forth in section 510. As said in Reed v. Stroh, 54 Cal.App.2d 183, 188, 128 P.2d 829, 832: ‘The term ‘reasonable care’ was not calculated to mislead the jury. The word ‘reasonable’ is an ordinary word and in common use, and is familiar to the average person. It occurs frequently in statutes that were intended for the daily guidance of laymen. Vehicle Code, § 510 * * *. In any event, it means the amount of care exacted of the motorist under the circumstances detailed by the evidence.' The contention that because plaintiff testified that the bus was going ‘approximately 30 miles an hour’ there was no foundation for giving the 25 mile an hour instruction because ‘25 is about 30’ is captious.

(3) Contributory Negligence.

The court did not err in refusing instructions on contributory negligence. There were no facts which would have justified such instructions.

The judgment is affirmed.


1.  All italics added unless otherwise noted.

2.  B.A.J.I. Instruction 206B, California Jury Instructions Civil, 3d Ed., 1943, p. 321.

3.  For discussion of the early rule and citation of both early and late cases including a number of carrier cases see Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 247 P.2d 344. That case also contains an excellent summation of the rules applicable to the res ipsa doctrine and an exhaustive correlation of authorities.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.