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

Ernest SHAW, Plaintiff and Respondent, v. PACIFIC GREYHOUND LINES, a corporation, Defendant and Appellant.*

Civ. 22001.

Decided: July 31, 1957

Moss, Lyon & Dunn, Gerold C. Dunn, and Henry F. Walker, Los Angeles, for appellant. Milan Medigovich, Los Angeles, for respondent.

Plaintiff, a passenger for hire on a bus of defendant, sought damages for personal injuries allegedly resulting from the negligent operation of the bus by defendant. In a trial by jury, judgment was for defendant. Plaintiff made a motion for a new trial upon the grounds of insufficiency of the evidence, and errors in law occurring at the trial. The motion was granted. The order granting the motion did not specify insufficiency of the evidence, or any ground, as the ground for granting the motion. Defendant appeals from the order granting the motion.

Plaintiff purchased a ticket at Corona Del Mar for transportation on defendant's bus from that city to Chula Vista. He testified that on July 9, 1954, about 12:30 A.M., he entered the bus at Corona Del Mar and sat in the second seat back of the bus driver; he sat with his legs ‘facing across-ways' towards the aisle, with his shoulder against the window; as they proceeded on the trip he did not sleep but his eyes were closed part of the time and he was relaxing; about 30 seconds before he accident he estimated that the bus was traveling about 65 miles an hour; after he had been on the bus about 30 minutes the bus came to a sudden stop as if the driver had jammed his foot on the brakes, and the sudden stop threw plaintiff against the seat in front of him, his toe came in contact with a solid object which was hanging from the seat, and twisted his body around and twisted his knee while the weight of his body was on his knee; a second or two before the bus stopped, plaintiff's eyes were closed; while plaintiff was being thrown against the seat, he saw an automobile which was about 20 feet in front of the bus; the bus did not come to a ‘full stop’ but it ‘dropped back from this fast speed,’ and then it speeded up again; after plaintiff was back in the seat the bus passed the automboile on the right side of the automobile; after the accident plaintiff told the driver that he had been injured; the accident happened about five or ten minutes before the bus arrived at Doheny Palisades; the bus stopped at Doheny Palisades; plaintiff kept complaining about his knee and asked the driver to call a doctor; the driver did not reply; when the bus stopped at Oceanside two policemen entered the bus and one of them asked plaintiff what had happened; plaintiff replied that his knee was paining him; he asked the driver why he had called the policemen; the driver replied that he had been instructd to do that; when the bus arrived in San Diego two men entered the bus and told plaintiff that they were representing the bus company; they asked him what had happened; he told them about the driver jamming the brakes and throwing plaintiff against the seat, and about plaintiff's knee being twisted; he asked the men to take him to a doctor; they took him in an automobile to a hospital in Chula Vista (he resided in Chula Vista). Plaintiff testified further that he had four drinks of liquor at Corona Del Mar, but he was not intoxicated; plaintiff opened his eyes when he felt the sudden slowing of the bus, and the bus was traveling around 25 miles an hour; the bus did not come to a ‘dead stop,’ but it slowed rapidly to about 25 miles an hour.

Jack Wilkins, the bus driver, testified that the accident happened on July 10; he first saw plaintiff standing on the curb at Corona Del Mar when the bus arrived there about 1:40 a. m.; when plaintiff entered the bus he stumbled; the driver smelled alcohol on plaintiff's breath; plaintiff sat behind the driver; there were two other passengers on the bus when plaintiff entered; plaintiff asked the driver several times if the bus was going to Chula Vista; in the opinion of the driver, plaintiff was intoxicated; the weather was clear and the pavement was dry; the driver did not apply the brakes abruptly between Laguna Beach and Doheny Palisades; the brakes applied smoothly; the bus was at Doheny Palisades about ten minutes; when the driver returned to the bus at that place, plaintiff was standing on the ground and holding onto the door of the bus; as plaintiff re-entered the bus he reached for the handrail and missed it twice; while the bus was there plaintiff complained of pain in his leg, asked the driver to get a doctor, and said that the driver had stopped abruptly and plaintiff's knee was broken; the bus stopped at San Clemente about twenty minutes, and the driver telephoned the dispatcher in San Diego and reported that a passenger was complaining that his knee was injured, and was asking for a doctor; the dispatcher told him to try to go to Oceanside and to call the police; plaintiff appeared to be in pain; when the bus arrived at San Diego the plaintiff was asleep; the driver saw agents of the bus company shaking plaintiff and trying to awaken him; they helped plaintiff to get off the bus and get into an automobile.

Mrs. Adair, called as a witness by defendant, testified that she was a cocktail waitress in a cafe at Corona Del Mar; she and her husband took plaintiff in their automobile to another cafe, where bus tickets were sold; they were with him when he bought a bus ticket; plaintiff mumbled when he spoke, and she could tell that he had been drinking.

A bartender, called as a witness by defendant, testified that he saw Mrs. Adair and a man assist plaintiff in buying a ticket; the plaintiff staggered when he walked; in the opinion of the witness, plaintiff was intoxicated.

Miss Dowell, called as a witness by defendant, testified that she was a waitress in the cafe where bus tickets were sold; she sold the ticket to the three persons; that plaintiff swayed up to the counter and started looking through all his pockets for the ticket money, and he dropped some money on the counter and on the floor; plaintiff's speech was incoherent; in her opinion, plaintiff was intoxicated.

Mr. Marksman, called as a witness by defendant, testified he was a sailor; he boarded the bus at Long Beach abut 1 a. m. on July 10 and he sat back of the driver, about the middle of the bus; at Doheny Palisades a man, who was in the front seat back of the driver, told the driver that the driver had made a sudden stop and hurt the man's knee; he (witness) did not notice a sudden application of the bus brakes that night; after the bus left Doheny Palisades, and until it arrived at Oceanside, plaintiff complained that his knee was hurting; at San Diego he saw a man shake plaintiff, trying to awaken him.

Mr. Whitcomb, called as a witness by defendant, testified that he was a shorthand reporter in the municipal court at San Diego; he reported a conversation between plaintiff and Mr. LeBarron (investigator for the bus company) at the bus station in San Diego. While the reporter was a witness he read a typewritten transcription of his shorthand notes. A part of the transcription was, in substance, as follows: plaintiff said that the bus stopped suddenly and he hit his toe against the front seat and his knee slipped out or he hurt his knee; that the driver was going 35 or 40 miles an hour, and he ‘just slowed down a little’; that the bus driver ‘was driving carefully, he was a competent driver.’ The reporter testified further that when he and Le Barron entered the bus plaintiff was asleep; Le Barron shook plaintiff and awakened him; he (witness) could smell liquor on plaintiff's breath; his original shorthand notes have been lost; he and Le Barron helped plaintiff go from the seat in the bus to an automobile which was near the bus; plaintiff was complaining of pain and he appeared to be in pain.

Plaintiff testified, on rebuttal, that he did not sway or stumble; he did not see either of the two men, who came on the bus at San Diego, write anything; no one in his presence took any notes, or had a pencil or paper in his hand.

Respondent (plaintiff) asserts in effect that a basis for granting the motion for a new trial was that the court erred in refusing to give two instructions, requested by plaintiff, on the doctrine of res ipsa loquitur.

Appellant (defendant) asserts that there was no error in refusing to give the instructions.

The first instruction referred to was, in part, as follows: ‘From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant.’ Under the evidence here, that instruction was erroneous. The instruction told the jury in effect that the evidence established that the accident happened under such circumstances that there was an inference of negligent conduct on the part of defendant. The first sentence in the instruction assumes that the accident occurred in the manner claimed by plaintiff. See Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 435, 260 P.2d 63, wherein the same instruction was referred to.

The second instruction was, in part, as follows: ‘If, and only in the event, you should find that there was an accidental occurrence as claimed by the plaintiff, namely: ......; and if you should find that from that accidental event, as a proximate result thereof, plaintiff has suffered injury, you are instructed as follows: an inference arises that the proximate cause of the occurrence in question was some negligent conduct on the part of the defendant.’ Appellant argues that the court properly refused to give this instruction, because it was incomplete in that the plaintiff failed to state (in the blank space) the claim of plaintiff concerning the happening of the accident. Appellant argues further that there were four claims of plaintiff as to the happening of the accident, and if the instruction had been given without filling the blank space, the jury would have been allowed to guess which of the various claims would require the application of the doctrine of res ipsa loquitur. Appellant states that plaintiff's claims were as follows: (1) the bus stopped suddenly; (2) the bus did not stop, but its speed was suddenly reduced; (3) the driver ‘just slowed down a little’; and (4) the driver was driving carefully. The plaintiff testified that the bus stopped suddenly as if the driver had jammed his foot on the brakes. He also testified that the bus did not make a ‘full stop’ but that it ‘dropped back from this fast speed, it slowed rapidly’ to 25 miles an hour and then speeded up again. Plaintiff did not testify that the driver ‘just slowed down a little,’ or that the driver was driving carefully. These statements, which are referred to by defendant as claims of plaintiff, are based upon the testimony of the shorthand reporter as to what the plaintiff said. It is true, as appellant argues, that the trial judge was not required to modify the proposed instructions by filling the blank space. The trial judge, however, in determining the motion for a new trial was required to consider whether he had properly instructed the jury upon the subject matter of the requested instructions which he had refused to give. The record shows that the court did instruct the jury, at the request of defendant, that: ‘The mere fact that an accident happened, considered alone, does not support an inference that some person, or any party to this action, was negligent.’ In Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724, 727, wherein the same instruction, just quoted, was involved, it was said: ‘It has been held that the challenged instruction should not be given where the undisputed evidence showed that but one dangerous instrumentality was involved in the happening of the accident and such instrumentality was in the exclusive control of the defendant.’ It is true that plaintiff said that he saw an automobile in front of the bus. The defendant did not contend, however, that an automobile was involved in the accident. The driver denied that he applied the brakes abruptly. Defendant was a common carrier and plaintiff was a passenger for hire. The effect of the instruction last referred to, given at the request of defendant, was that the doctrine of res ipsa loquitur was not applicable. If the bus stopped suddenly or it reduced its speed suddenly, as plaintiff testified, and as a proximate result thereof plaintiff was injured, the doctrine of res ipsa loquitur was applicable.

In Hardin v. San Jose City Lince, Inc., 41 Cal.2d 432, at page 436, 260 P.2d 63, at page 65, it was said: ‘It is equally well settled, however, that an inference of negligence based on res ipsa loquitur arises in cases where a passenger on a common carrier is injured as the result of the operation of the vehicle and that the carrier is obliged to meet the inference by evidence sufficient to offset or balance it.’ In that case plaintiff sought damages for injuries sustained while she was riding on a bus operated by the defendant. Plaintiff, therein, testified that while she was standing near the door, preparatory to getting off the bus, the bus came to a sudden stop and she was thrown against a handrail and was injured. In that case there was evidence on behalf of defendant that the company has not received any report of the accident; and there was testimony of bus drivers, who allegedly were the only drivers on that route at said time, that no incident of the kind described by plaintiff occurred on his bus. It was held therein that, under the testimony presented by plaintiff, the doctrine of res ipsa loquitur was applicable.

In Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, at page 170, 153 P.2d 338, at page 341, it was said: ‘[M]uch is committed to the discretion of the trial judge in determining a motion for new trial which is made upon the ground of asserted error in instructions.’

The order granting the motion for a new trial is affirmed.


SHINN, P. J., and VALLEÉ, J., concur.