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District Court of Appeal, First District, Division 2, California.

Edward Karl GOBIN, a minor, by his Guardian ad litem, Lola Gobin, and Lola Gobin, Plaintiffs and Appellants, v. AVENUE FOOD MART, Pacific Toy House, Knickerbocker Plastic Company, Defendants and Respondents.*

Civ. 18475.

Decided: October 20, 1959

Johnson, Thorne, Speed & Bamford, San Jose, for appellants. Joseph F. Rankin, Robert L. Anderson, Oakland, for respondents.

This appeal from a judgment for defendants following a jury verdict is presented on a partial reporter's transcript under Rules on Appeal, rule 4(b). The only point to be raised by appellants on appeal designated in the notice to prepare transcript is: ‘failure of the court to instruct the jury on res ipsa loquitur.’

The action was by a minor, who at the time of injury was six years of age, for damages for injury to his eye in which his mother joined seeking to recover medical expenses incurred as a result thereof. The boy received the injury when, after a plastic dart broke in being fired from a toy gun so that only the upper part of the dart was ejected, the boy looked into the barrel of the gun to discover what had become of the other fragment of the dart and it was ejected against one of his eyes.

The gun was purchased from defendant Avenue Food Mart on Friday, February 11 at about 6:30 p. m. The injury occurred at about 5:30 p. m. the following evening. The gun and darts when purchased were fastened to a piece of cardboard enclosed in a plastic bag which was stapled together at the top. Defendant Knickerbocker Plastic Company is the manufacturer of the gun and defendant Pacific Toy House is the wholesaler and distributor from which defendant Avenue Food Mart purchased it. The complaint relied both upon breach of warranty and negligence. Obviously only the negligence counts are involved in this appeal.

The shaft of the dart was composed of a plastic material and each dart had on its tip a rubber suction cup. The gun contained a spring and was loaded by pressing the shaft down the barrel and against the spring until the spring automatically locked. It was discharged by releasing the spring with a trigger.

Evidence was given by an expert who had examined similar plastic darts manufactured by defendant Knickerbocker Plastic Company, including on of the darts which came with the gun purchased by the plaintiffs. He found void or hollow parts in the darts which made them more readily breakable and by experiments in shooting them against other objects found a chipping of the darts which indicated that they were brittle.

The use to which the gun and darts were put between the time of their purchase and the injury are hereinafter detailed.

The proposed instruction on res ipsa which the court refused to give was in the language of B.A.J.I., 4th Edition, 206F. No claim is made that this instruction does not correctly state the law on the subject, the only contention being that it was properly refused in this case.

The theory relied on by plaintiffs is that set out in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458, 150 P.2d 436, 438, where it is stated that ‘the doctrine [of res ipsa loquitur] may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant's possession.’

The refused instruction would have correctly advised the jury of this latter requirement, i. e., that unless the plaintiffs proved by a preponderance of the evidence that the dart had not suffered any damage between the time it left defendants' control and the time of the accident they could not apply the doctrine of res ipsa loquitur.

Respondents' main contention is that the evidence produced by plaintiffs failed to establish that the dart was not weakened or broken by mishandling after it left the respondents' possession. It is not necessary to entitle a plaintiff to the benefit of the res ipsa instruction that the plaintiff demonstrate conclusively that the source of his injury was not damaged after it left the defendant's possession. Conclusive demonstration is never required in a civil action. The burden upon the plaintiff in this respect, as in the case of any issue in a civil case, is only to satisfy the jury by a preponderance of the evidence of the fact necessary to be proved. Thus the court said in Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d 453, 458, 150 P.2d 436, 439: ‘It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.’ (Emphasis ours.)

So in Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 518, 203 P.2d 522 525, the court said in upholding the giving of a res ipsa instruction: ‘While this evidence was not conclusive it was the jury's province to determine, after being properly instructed, whether the plaintiff had sufficiently proved the absence of intervening harmful forces after the defendant shipped the bottle to entitle the plaintiff to rely on an inference inherent in the doctrine that the defendant's lack of care was the proximate cause of his injury.’ (Emphasis ours.) See Further Seneris v. Haas, 45 Cal.2d 811, 826–827, 291 P.2d 915, 53 A.L.R.2d 124; Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, 229, 252 P.2d 24; Hoffing v. Coca-Cola Bottling Co., 87 Cal.App.2d 371, 375, 197 P.2d 56; Dunn v. Vogel Chevrolet Co., 168 Cal.App.2d 117, 335 P.2d 492. Prosser, Handbook of the Law of Torts, 2d Ed., p. 209; Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev., pp. 198, 202.

The minor plaintiff and his mother gave testimony of the uses to which the gun and darts had been put from the time of their purchase until the boy's injury. The gun and darts were unwrapped either on the way home or after arriving there. The mother instructed her son how to load the gun and discharge it and warned him not to shoot the gun at anyone. That evening the boy shot the darts at a cardboard target in his home. He also that first evening shot at a fence in his yard standing about nine feet from the fence. About the fourth time he shot at the fence the suction cup came off of the dart and he put it back and tamped it against the flat surface of a log about three times. ‘I might have did it hard and I might have did it soft * * *.’ Thereafter the suction cup did not come off. His little brother ‘might have shot a couple of times.’ When he was not using it he ‘might have put it on the table or on a shelf by our T.V.’ The next day he played with the gun again. Loren or Kevin, two little neighbor boys, may have been with him. The injury occurred about 5:30 p. m. the second day. He shot at a telephone pole and only part of the dart came out. He looked into the barrel to see where the rest of the dart was and the fragment was ejected striking him in the eye. He gave the following answers to the following questions:

‘Q. Had any of the darts broken before you got hurt? A. No.

‘Q. They had been all right, I mean, as far as you could tell; is that right? A. (Witness nods affirmatively.) * * *

‘Q. Did anything happen to the gun or any of the darts in that time, except what you told Mr. Rankin? A. Not that I remember.

‘Q. Did anyone step on the gun or darts? A. No.

‘Q. Or anything happen other than what you said; is that right? A. (Witness nods affirmatively.)’

From this testimony the jury could reasonably have concluded that it was more probable that, except for the incident of tamping back the loose cup onto the head of one dart, the only use that had been made of the darts and gun was the normal use for which they were designed, i. e. shooting the darts from the gun.

As to the tamping of the one dart the minor plaintiff testified that he thought it was the first evening when he was shooting at the fence that the tamping took place. He played with the gun the next day and it was not until that evening that the dart finally broke. Under these circumstances it was a question for the jury to decide whether the tamping might or might not be reasonably found to have damaged the dart. We are satisfied that this question should have been left to the jury under all of the evidence produced.

Respondents argue the knowledge of the mother of the character of the gun (she had sold similar guns at her place of employment) and from this contend that there might be contributory negligence in not warning her son further or supervising his use of the gun, but this was clearly a jury question on the facts.

They also argue that the minor's looking into the barrel of the gun was the proximate cause of his injury. But whether a six year old boy was negligent in so doing also presents a question of fact. What might be negligence in an adult as a matter of law is not necessarily negligence when committed by a child of limited judgment and experience (35 Cal.Jur.2d, Negligence, § 78, pp. 587–588), and the question of the negligence of a child of such tender years would clearly be a question of fact for the determination of the jury in the light of the particular circumstances (35 Cal.Jur.2d, Negligence, § 79, p. 589).

Respondents finally point out that the complaint contains counts on breach of warranty and that the doctrine of res ipsa has no application to the warranty counts, and complain that: ‘The plaintiffs proceeded on the theory of breach of warranty and negligence in the various separate causes of action and in the requested instruction, which is the subject of this appeal, no provision is made to differentiate as to applicability to the several defendants.’ The instruction plainly deals with negligence only and on its face has no applicability to breach of warranty and could not be applied to the warranty counts against any defendant by the jury.

Judgment reversed.

DOOLING, Justice.

KAUFMAN, P. J., and DRAPER, J., concur.