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

Felix BARRERA and Dolores Barrera, his wife, Plaintiffs and Appellants, v. Armondo A. DE LA TORRE, Defendant and Respondent.*

Civ. 21328.

Decided: August 09, 1956

Ernest V. Shockley, Los Angeles, for appellants. Schell, Delamer & Loring, Los Angeles, for respondent.

In this action for damages (to a house and for personal injuries) resulting from the operation of an automobile, judgment upon a verdict was in favor of defendant. Plaintiffs appeal and contend that the court gave an erroneous instruction to the jury.

About midnight, defendant (who was alone) was driving his automobile westerly on Third Street in Los Angeles, and at the intersection of that street and Arizona Street the automobile went over the curb, across the sidewalk, through a chain-link fence, and against plaintiffs' dwelling house.

Immediately preceding the crash, the plaintiffs were asleep in the house. The only eyewitness (who testified) was the defendant.

Third Street extends east and west and is about 75 feet wide. Arizona Street extends north and south and is about 50 feet wide. There is a boulevard stop sign at the south entrance of the intersection.

Defendant testified, in part, that when he was about 20 feet east of the intersection and was traveling west at the rate of approximately 20 miles an hour, he saw an automobile on Arizona Street, about 50 feet south of the intersection (to his left), traveling north; he glanced to his right and then looked again to his left, and at that time the other automobile was 8 to 10 feet from him, traveling at the rate of approximately 50 miles an hour; when defendant's automobile had passed the center of Arizona Street, the other automobile struck the left rear fender of defendant's automobile and knocked defendant off the driver's seat; his head struck the right door; he was on the floor board; he ‘must have touched the accelerator, as the car gathered speed’; defendant's car veered to the left, was out of control and went over the south curb of Third Street, at a place about 100 feet west of the intersection, and struck a fence and a house; after the accident, the driver of the other car ‘turned off his lights and sped away’; the other car was a 1941 Chevrolet; he knew that the other car was that kind of car because parts of a Chevrolet car were at the corner—he ‘went back and they were on the corner, part of a bumper and a piece of skirt’; he saw a ‘brush mark,’ about 15 feet long, at the intersection.

A police officer, called as witness by defendant, testified that he was at the intersection about 12:30 a. m. (after the accident); defendant told him that he had been struck by another car which did not stop at Third Street, and that the front bumper of the other car was dragging as the car left the scene. On cross-examination, he said that he (officer) did not see any skid marks there, and he did not see any materials in the roadway.

Plaintiffs did not request that the jury be instructed that the doctrine of res ipsa loquitur is applicable here. They did not request any instruction. Under such circumstances, they are not in a position to contend that the court erred in failing to give a particular instruction. They are, of course, entitled to assert that an instruction which was given was erroneous. They assert that the court erred in giving the following instruction: ‘The mere fact that an accident happened, considered alone, does not give rise to a legal inference that it was caused by negligence or that any party to this action was negligent.’ The effect of that instruction is that the doctrine of res ipsa loquitur is not applicable herein. It was error to give the instruction. The accident herein was one which ordinarily does not occur in the absence of negligence. The automobile which struck the house was within the exclusive control of the defendant. The accident was not due to any voluntary action or contribution on the part of either plaintiff. These conditions are conditions under which the doctrine of res ipsa loquitur is applicable. In Ybarra v. Spangard, 25 Cal.2d 486, at page 489, 154 P.2d 687, at page 689, 162 A.L.R. 1258, it was said: ‘The doctrine of res ipsa loquitur has three conditions: ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’' See Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915; Nungaray v. Pleasant Valley, etc., Ass'n, 142 Cal.App.2d 653, 300 P.2d 285. An inference of negligence, under the doctrine of res ipsa loquitur, is evidence. See Armstrong v. Pacific Greyhound Lines, 74 Cal.App.2d 367, 374, 168 P.2d 457. Plaintiffs were entitled to the presumption embodied in the doctrine of res ipsa loquitur. Even though plaintiffs did not request an instruction that said doctrine was applicable, the court should not have given an instruction to the effect that the doctrine was not applicable.

The judgment is reversed.


SHINN, P. J., and VALLEÉ, J., concur.

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