KEENA v. SCALES

Reset A A Font size: Print

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

Maruice J. KEENA, Plaintiff and Appellant, v. Frank J. SCALES, Defendant and Respondent.

Civ. 20213.

Decided: October 24, 1963

Boccardo, Blum, Lull, Niland & Teerlink, by Edward J. Niland, San Jose, for appellant. John P. Whitney, San Jose, for respondent.

This is an appeal by plaintiff from a judgment for defendant entered on a jury verdict in an action for damages for personal injuries. The sole question presented is whether the trial court committed prejudicial error in not giving plaintiff's proffered instruction on res ipsa loquitur.

Plaintiff, as a business invitee of defendant, entered the latter's office for the purpose of discussing an automobile repair bill. He sat down on a swivel chair in front of defendant's desk while defendant, who was seated behind the desk, computed the repair bill. Plaintiff testified that he sat on the chair for a period of from five to ten minutes in a forward position watching the computation; that when defendant completed his computation and proceeded to add the figures on an adding machine, plaintiff for the first time leaned back in the chair and that he went backwards in one motion falling to the floor.1 Plaintiff came to rest still in a seated position in the chair.2 Plaintiff testified that he did not hear the sound of wood breaking before the fall. Defendant, who did not observe the fall because he was looking down at his desk, testified that he heard no noise before the chair hit the floor. Plaintiff testified, further, that as he started to get up from the floor, one of the chair's casters was off and that ‘there was a lot of pieces of wood.’ Defendant, on the other hand, stated the caster was not off after the accident, and stated, further, that before the accident plaintiff was sitting and ‘leaning back in a comfortable position’ and was using the chair in a normal fashion as he himself ‘had done on many occasions. * * *’ Mrs. Rondoni, defendant's sister, testified that she was looking into the office through a glasspane door; that she saw plaintiff leaning back comfortably; that he then moved a little bit, leaned back again, and then he fell. She also testified that she had used the chair herself and had never had any difficulty with it.

The condition of the chair, after the fall, was as follows: all of the slats on the back rest were broken; the back rest was loose; one arm rest was loose and an upright connecting it to the seat was broken off at the base; and the other arm rest was off. The chair was approximately forty years old and had been purchased by defendant eight years previously. Defendant testified that he had used the chair daily; that it was designed so that persons who sat in the chair could lean back if they desired; that he had leaned back in the chair when he used it as far as it was comfortable; that ‘nothing ever happened’; that he ‘[n]ever fell out’; and that prior to the accident the chair was in good condition; that it was ‘very sound and solid’; that none of the slats in the back rest were loose; and that the back rest did not wobble.

Defendant's accountant, Lund, testified that he had purchased new casters for the chair six months before the accident. Lund also stated that the chair was ‘in perfect condition’ prior to the accident. He did testify, however, three months before the accident he had had an accident with the chair ‘in the same place; * * *’ He stated that at that time he sat in the chair and as he was in the process of leaning back in it, the chair fell out from under him, but that it did not break. On cross-examination, Lund testified that he ‘went back fast.’ Lund testified further that the more modern chairs have a wider base and ‘a lower center of balance, not so likely to tip.’ He also stated that although customers frequently used the chair he did not warn them that it could tip over easily because ‘we didn't feel it was necessary. * * *'3

Each side produced expert testimony concerning the probable cause of the accident. on behalf of plaintiff, Peter Watson, a physicist, testified that he had examined the chair and found that two of the screws in the back rest had been loose for some period of time and that the slats on the lower part of the back rest were relatively loose; that the manner in which the slats were broken indicated that they had broken in a backward rather than a forward direction; that in his opinion, the looseness of the screws allowed the back rest to move in a backward direction while plaintiff was seated in the chair, causing the slats to break and that without doubt the break occurred when plaintiff leaned back in the chair and not when the chair struck the floor.

Emanuel Fritz, a wood technologist, testified for plaintiff to the effect that the back rest on the left-hand side of the chair was loose because the screw holes had become enlarged; that the glue at the upper end of the slats was ineffective, leaving the slats loose at that end; that in his opinion the left-hand side had become loose because the screws were loose before the accident occurred so that the back rest became separated from the style while plaintiff was seated in the chair, causing the slats to break.

William Lorell, a professor of engineering and mechanics, testified for defendant that he had found no evidence that there had been motion between the back rest and the style where they had originally been joined; that the slats at the top were very tight; that there appeared to be no evidence of any previous looseness of the left style or left arm rest; that one of the slats had been fractured for some time, but that it was impossible to determine whether the back of the chair was broken by a forward or backward force; that logically, the most probable way in which the chair was broken was by the blow on the floor. He testified further that the mechanics of defendant's chair did not appear to allow it to go back too far in normal operation, but that he had not found a swivel chair yet that could not tip over, and that he fell out of them ‘with clock-like regularity.’

The res ipsa loquitur instruction proffered by plaintiff and refused by the trial court read as follows: ‘If, and only in the event, you should find that the chair in question collapsed in the manner as claimed by the Plaintiff 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. That inference itself is a form of evidence, and if none other exists tending to overthrow it, or if the inference, either alone or with any other evidence supporting it, preponderates over contrary 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 he did, in fact, exercise ordinary care and diligence, or that the accident occurred without being proximately caused by any failure of duty on his part.’

In Roddiscraft, Inc. v. Skelton Logging Co., 212 A.C.A. 802, 28 Cal.Rptr. 277, we recently had occasion to review the doctrine of res ipsa loquitur and its applicability in California negligence law. We there stated the doctrine and the existence of the conditions upon which it is based to be as follows: ‘Before the doctrine may be applied, however, the following requisite conditions must be met: (a) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (b) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (c) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citations.] When these basic conditions exist the rule of res ipsa loquitur comes into play and an inference of negligence on the part of the defendant is raised. [Citations.] The existence of the conditions upon which the doctrine is predicated is usually a question of fact. [Citation.] Accordingly, where the evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res opsa loquitur is present. [Citations.] It should be noted, however, that one or more of the three conditions, may under the particular circumstances of the case exist as a matter of law. [Citation.] Where there is no issue of fact as to the existence of any of these conditions, the application of res ipsa loquitur is compelled as a matter of law, and the court is thereupon called upon to direct the jury to draw the inference of negligence. [Citations.] On the other hand, if the existence of any condition is one of fact it is the province of the jury to determine, under proper instructions, whether such condition is present. [Citation.] In the situation where the existence of the three conditions, or any of them, is a question of fact, the jury must first determine that each of such conditions exists before the judge can direct it to draw the inference of negligence. [Citations.]’ (Pp. 811–812 of 212 A.C.A., p. 282 of 28 Cal.Rptr.)

Plaintiff does not here contend that the doctrine is applicable as a matter of law; nor does he contend that any of the afore-mentioned conditions exist as a matter of law. In this latter respect he concedes that the existence of each of the requisite conditions is a question of fact. Accordingly, he contends, there was sufficient evidence upon which the jury could find the existence of each condition and that the instruction submitted by him properly submitted the issues of fact attendant upon each of the conditions. Defendant argues, on the other hand, that res ipsa loquitur is not applicable to the case at bench and that, in any event, plaintiff's proposed instruction was improper.

Before discussing the propriety of the proposed instruction, we must of necessity, consider whether the rule of res ipsa loquitur is applicable in the present case. In making this determination we must view the evidence in the light most favorable to the party requesting instructions on the doctrine of res ipsa loquitur. (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633, 255 P.2d 795; Edgett v. Fairchild, 153 Cal.App.2d 734, 738, 314 P.2d 973; Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 A.C.A. p. 813, 28 Cal.Rptr. p. 284.) With this requirement as a guide we not turn to the ascertainment of whether the evidence so viewed establishes the elements which would entitle plaintiff to an instruction on the rule of res ipsa loquitur.

The first condition, i. e., that the accident must be of a kind which does not occur in the absence of someone's negligence, is essentially predicated upon the basis of past experience which will permit the trier of fact to conclude that such an accident does not ordinarily happen unless someone has been negligent. (Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 A.C.A. p. 813, 28 Cal.Rptr. p. 284; Prosser, Res Ipsa Loquitur in California (1949) 37 Cal.L.Rev. 183, 191.) In making this determination the courts have relied upon both common knowledge and the testimony of expert witnesses, as well as the circumstances relating to the accident in each particular case. (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446, 247 P.2d 344; Wolfsmith v. Marsh, 51 Cal.2d 832, 835, 337 P.2d 70, 82 A.L.R.2d 1257.) The evidence need not show the accident in question is of a type which must occur because of someone's negligence, but the requirement is that in the light of past experience the accident probably was the result of negligence by someone. (Di Mare v. Cresci, 58 Cal.2d 292, 298–299, 23 Cal.Rptr. 772, 373 P.2d 860; Faulk v. Soberanes, 56 Cal.2d 466, 470, 14 Cal.Rptr. 545, 363 P.2d 593.) Accordingly, where reasonable men may differ as to the balance of probabilities, the question whether negligence is the most likely explanation of the accident is one for the jury; and the inference of negligence which the jury may draw need not be a conclusive or compelling one. (Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 A.C.A. p. 815, 28 Cal.Rptr. p. 285; Seneris v. Haas, 45 Cal.2d 811, 827, 291 P.2d 915, 53 A.L.R.2d 124.)

In the present case it is apparent that the accident occurred as the result of someone's negligence. We have expert testimony adduced by plaintiff that the chair was defective. Moreover, it is a matter of common knowledge that a swivel chair, designed so that the seat and back can be tilted backward, does not ordinarily fall rearward to the floor when used by the sitter. There is no question but that the jury, if given the issue, had sufficient evidence before it from which it could determine that the accident was the result of someone's negligence. We are inclined, moreover, to the belief that the first condition was present as a matter of law. A person does not ordinarily fall from or out of a chair unless someone has been negligent. Thus, in the instant case, the accident could have occurred either by plaintiff leaning back beyond the center of gravity, by plaintiff tilting the chair back too rapidly, or as a result of the chair being defective in some particular. The important question is: who was negligent? This question brings us to the consideration of the second condition.

In considering the second condition we are again confronted with the rule of the ‘balance of probabilities.’ Accordingly, the determination to be made is whether it is more probable than not that defendant's negligence caused the accident. (Di Mare v. Cresci, supra, 58 Cal.2d p. 299, 23 Cal.Rptr. p. 776, 373 P.2d p. 864; Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 A.C.A. p. 815, 28 Cal.Rptr. p. 285.) It is a fundamental rule that the res ipsa loquitur doctrine is not applicable where it is equally probable that the accident was caused by some fault for which the defendant was not liable and where it cannot be said that it is liable and where it cannot be said that it is caused by the negligence of the defendant. (Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d p. 443, 247 P.2d p. 348; Borenkraut v. Whitten, 56 Cal.2d 538, 547, 15 Cal.Rptr. 635, 364 P.2d 467.) The application of this rule usually presents a jury question. (Borenkraut v. Whitten, supra; Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 A.C.A. p. 816, 28 Cal.Rptr. 286.)

In dealing with the question whether it is more probable than not that the defendant's negligence caused the accident, the courts have evolved the second requisite condition, i. e., that the defendant must have management or control of the agency or instrumentality which causes the accident. The requirement of management or control is not an absolute one. Although the second condition includes the words ‘exclusive control’ in its definition, the control may be constructive as well as actual. (Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d pp. 443–444, 247 P.2d p. 348; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 687, 268 P.2d 1041; Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, 229, 252 P.2d 24; Owens v. White Memorial Hospital, 138 Cal.App.2d 634, 640, 292 P.2d 288; Metz v. Southern Pacific Co., 51 Cal.App.2d 260, 268, 124 P.2d 670.) Accordingly, the control requirement is satisfied where the defendant has the right of control regardless of whether he exercises physical control. (Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 486, 247 P.2d 335; Baker v. B. F. Goodrich Co., supra, 115 Cal.App.2d pp. 226–227, 252 P.2d p. 27.)

In Rose, a patron of a cocktail lounge was injured when a stool on which he was sitting collapsed. There the chair of the stool separated from its supporting base almost immediately upon the patron's sitting down, causing him to fall backward to the floor. The Supreme Court held that while the plaintiff was in a sense in control of the stool while he was using it, the defendant was in exclusive control of the stool up to the time the plaintiff sat upon it, and that under the circumstances, the owner of the stool had exclusive control of the stool within the meaning of the res ipsa loquitur doctrine. In Rose, while the factual situation was one in which the condition of the stool, rather than the use made of it, was responsible for the fall, the reviewing court did make the following observation: ‘So far as construction, inspection, or maintenance of the stool were concerned, defendant had exclusive control.’ (p. 487, of 39 Cal.2d p. 338 of 247 P.2d.)

In Baker, a tire exploded while being mounted on a wheel. Res ipsa loquitur was held applicable in an action against the tire manufacturer. In discussing the requirement of exclusive control, the appellate court stated that proof of such control at the time of the accident was not required in every instance but that control at the time of the negligent act was sufficient to satisfy this requirement under certain circumstances. The reviewing court there relied upon the rule declared in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458, 150 P.2d 436, 438, that ‘the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, alhough 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.’ It was accordingly held in Baker that there was sufficient evidence to give rise to a reasonable inference that, at least up to the time when the plaintiff undertook to mount the tire, the condition thereof had not been changed.

Of particular interest are two cases involving the collapse of chairs. In Micek v. Weaver-Jackson Co., 12 Cal.App.2d 19, 54 P.2d 768, the plaintiff wife was injured when a swivel chair in which she was invited to sit for the purpose of receiving a hair treatment collapsed, precipitating her to the floor. Testimony adduced by the plaintiffs offered no hint as to the cause of the collapse of the chair. It was there held that plaintiffs were entitled to invoke the doctrine of res ipsa loquitur. And in Gross v. Fox Ritz Theatre Corp., 12 Cal.App.2d 255, 55 P.2d 227, the doctrine was likewise held applicable where a chair in which a theatre patron had been sitting for approximately 20 minutes collapsed. In each of these cases the reviewing court expressed no doubt that under the circumstances the doctrine was applicable and no discussion at all was indulged in as to the question of control.

In the case here under consideration, there is sufficient evidence to warrant the inference that defendant had the right of control of the swivel chair in the sense indicated by the foregoing cases. It was in the exclusive control of defendant up to the time plaintiff sat in it, and, insofar as its construction, maintenance and inspection were concerned, it was at all times under defendant's exclusive control. Moreover, there is sufficient evidence adduced by plaintiff from which the jury could infer that up to and until the very moment plaintiff leaned back in the chair its condition had in no way changed from the time he first sat in it. It should be noted that plaintiff's theory is predicated upon the defectiveness of the chair, the inspection and maintenance of which were defendant's obligation and duty. Plaintiff's experts testified that in their opinion the chair was subject to certain defects which had existed for some time prior to the accident, and that these defects resulted in the breaking of the slats in the back of the chair when plaintiff leaned back. This evidence strongly suggests negligence in the inspection, or lack of inspection, and maintenance of the chair by defendant. There is, accordingly, sufficient evidence from which the jury could conclude that the more probable explanation for the accident was defendant's negligence. The fact that there may be a conflict as between the experts as to the cause of the accident does not prevent the jury from indulging in the inferences within its province. (Roddiscraft v. Skelton Logging Co., supra, 212 A.C.A. 802, 819, 28 Cal.Rptr. 277; Tallerico v. Labor Temple Ass'n, 181 Cal.App.2d 15, 19, 4 Cal.Rptr. 880.)

The inference of negligence, however, does not point to the defendant until the plaintiff himself has been eliminated as a cause, or, as stated in the third condition, the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. Accordingly, the plaintiff must account for his own conduct before res ipsa loquitur will apply. (Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d 453, 458, 150 P.2d 436.) He will not, however, be deprived of the doctrine even though he has participated in the events leading to the accident if the evidence excludes his own conduct as a responsible cause. (Roddiscraft Inc. v. Skelton Logging Co., supra, 212 A.C.A. p. 819, 28 Cal.Rptr. p. 288; Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 444–445, 247 P.2d 344; Baker v. B. F. Goodrich Co., supra, 115 Cal.App.2d 221, 229, 252 P.2d 24.) How and to what extent the plaintiff must account for his own conduct is explained by Prosser as follows: ‘[T]he plaintiff's mere possession of a chattel which injures him does not prevent a res ipsa case where it is made clear that he has done nothing abnormal and has used the thing only for the purpose for which it was intended. The plaintiff need only tell enough of what he did and how the accident happened to permit the conclusion that the fault was not his. * * * [H]e has the burden of proof by a mere preponderance of the evidence; and even though the question of his own contribution is left in doubt, res ipsa loquitur may still be applied under proper instructions to the jury.’ (Prosser, supra, 37 Cal.L.Rev., pp. 201–202; footnotes omitted.)

In the instant case, therefore, the fact that the accident occurred while plaintiff was engaged in the act of leaning back in the swivel chair would not deprive him of the benefit of the doctrine. According to plaintiff's testimony he just leaned back on this one occasion, and as stated by him, ‘* * * I just never stopped going backwards.’ The jury would be justified, therefore, in drawing the inference that plaintiff did nothing abnormal when he leaned back in the swivel chair and that he used the chair for the purpose for which it was intended.

Having concluded that all the conditions necessary for the application of res ipsa loquitur are present in the instant case, we now turn to the propriety of plaintiff's proffered instruction. The form of the res ipsa loquitur instruction is dependent upon the circumstances of each case. The basic instruction, directly invoking the res ipsa loquitur rule, is applicable in all cases involving the doctrine. This instruction charges, essentially, that, from the happening of the accident involved in the case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant, and instructs, further, that such inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. This instruction must also appropriate instruct as to the weight of the evidence when there is contrary evidence, and as to the showing required of the defendant in order to meet or balance the inference of negligence.4 (See Dierman v. Providence Hospital, 31 Cal.2d 290, 295, 188 P.2d 12; Fry v. Sheedy, 143 Cal.App.2d 615, 619–620, 300 P.2d 242.) Where it is established, either by uncontradited evidence or admission, that facts exist which give rise to the res ipsa loquitur doctrine (i. e., when there is no issue as to whether the accident occurred or that the plaintiff was injured thereby, and where the three requisite conditions aforesaid exist as a matter of law), the basic instruction aforementioned need only be given and, when given alone, is sometimes referred to as the ‘unqualified’ instruction on res ipsa loquitur. (See Kite v. Coastal Oil Company, 162 Cal.App.2d 336, 344, 328 P.2d 45; Seneris v. Haas, supra, 45 Cal.2d 811, 823, 291 P.2d 915, 53 A.L.R.2d 124; Roberts v. Bank of America, Nat. Trust & Savings Ass'n, 97 Cal.App.2d 133, 137, 217 P.2d 129.)

When as issue exists as to whether the alleged accident occurred or, if the accident occurred, whether the plaintiff was injured thereby, the basic instruction aforesaid must be qualified by a preceding introductory sentence which submits the said issue to the jury.5 (See Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 435, 260 P.2d 63; McMillen v. Southern Pac. Co., 146 Cal.App.2d 216, 303 P.2d 788; Moore v. Belt, 34 Cal.2d 525, 212 P.2d 509.) The res ipsa loquitur instruction is then sometimes referred to as a ‘qualified’ instruction on the doctrine.

Again, when there is a factual issue as to whether all or any of the aforesaid conditions requisite to the doctrine exist, the basic instruction is also said to be qualified. Accordingly, when there is a question whether there are facts establishing any of such conditions, the basic instruction aforesaid must be preceded by an instruction which appropriately instructs the jury that it must first decide whether the condition in question exists before it can invoke the inference of negligence contained in the basic instruction.6 (See Davis v. Memorial Hospital, 58 Cal.2d 815, 818–819, 26 Cal.Rptr. 633, 376 P.2d 561.)7 In the ordinary case the jury is required to find the existence of all three conditions. However, as we have pointed out above, it may not be necessary to instruct on all three as one or two may exist as a matter of law. (See Kite v. Coastal Oil Company, supra, 162 Cal.App.2d p. 344, 328 P.2d p. 51.)

In the case at bench there is no question that the accident happened or that plaintiff was injured by such accident. The question is whether facts exist which give rise to the doctrine or, stated another way, whether the three conditions requisite to res ipsa loquitur are present. The existence of this question is acknowledged by plaintiff who concedes that the determination of the existence of each of these questions was one of fact for the jury. He submits, however, that his proffered instruction was adequate for the purpose of submitting these issues to the jury. As we have hereinabove indicated, we are of the opinion that the first condition exists as a matter of law. Accordingly, it was not necessary to submit the determination of the existence of this condition to the jury. Our conclusion in this regard is based upon the obvious fact that swivel chairs, designed for the purpose of being sat in by persons using them, do not ordinally collapse or fall without negligence in their construction, maintenance or use.

The second and third conditions, however, were issues for the jury's determination. Plaintiff contends that the factual issues attendant upon these conditions are submitted to the jury by the following statement in his proffered instruction, to wit: ‘If, and only in the event, you should find that the chair in question collapsed in the manner as claimed by the Plaintiff * * * [a]n inference arises. * * *’ This instruction was erroneous because it does not permit the jury to determine the issues of fact embraced in the second and third conditions, but merely told the jury that if they found that the accident occurred in the manner claimed by plaintiff an inference arises that the proximate cause of the occurrence in question was some negligent conduct on the part of defendant. The vice of the proposed instruction is that it restricts the application of the doctrine to whether the accident happened in the manner claimed by plaintiff. In Hardon v. San Jose City Lines, supra, 41 Cal.2d 432, 260 P.2d 63, it was held to be error to instruct that “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,” because this language erroneously assumes that an accident occurred in the manner claimed by the plaintiff. (P. 435 of 41 Cal.2d, p. 64 of 260 P.2d.) It was there suggested that, under the circumstances of the case, the instruction should have been prefaced by language such as “If, and only in the event, you should find that there was an accidental occurrence as claimed by plaintiff * * *.” (P. 435 of 41 Cal.2d, p. 65 of 260 P.2d.) The suggestion made by the Supreme Court in Hardin, upon which plaintiff relies as the basis for his proffered instruction, has reference to a situation where there is a question as to whether the accident has in fact occurred. This is not the situation in the instant case where there is no question that the accident occurred. The prefacing language used by plaintiff does not have reference to whether the accident in fact occurred, but to whether it occurred in the manner claimed by plaintiff, i. e., whether the chair ‘collapsed in the manner claimed by the Plaintiff. * * * ’ (Emphasis added.) This language is clearly within the proscription of Hardin.

The determining factor is not whether the accident occurred as claimed by either party, but whether the accident itself occurred under the circumstances wherein the three required conditions were present. In the instant case, insofar as the second condition is concerned, there was evidence that would permit the inference that the chair was defective prior to the accident and thus, insofar as maintenance and inspection were concerned, was under defendant's control. On the other hand, there was evidence that the chair was in good condition when plaintiff sat in it, and evidence from which the inference could be drawn that the accident occurred because of the misuse of the chair by plaintiff. Thus we have evidence from which the trier of fact could conclude that defendant had relinquished all control, and that the chair had been mishandled in its use. We, accordingly, have a factual issue on the question of exclusive control, the resolution of which was for the jury. In order to make the determination, the jury was required to have an instruction which adequately spelled out the elements of the second condition.

Pertinent to the third condition, and likewise related to the second condition, is the evidence relative to plaintiff's contribution to the accident. There is a conflict in the evidence in this respect. Plaintiff testified that he leaned back once in one movement. Defendant stated that plaintiff had been leaning back comfortably. Defendant's sister testified to the same effect but also stated that ‘he them moved a little bit,’ leaned back again and then fell. In view of the testimony that the chair was in good condition prior to the accident, there was sufficient evidence from which the jury could conclude that the accident occurred solely because of plaintiff's abnormal use of the chair. Accordingly, it was for the jury to determine, under an appropriate instruction delineating the elements of the third condition, whether plaintiff excluded his own conduct as a responsible cause. (See Guerrero v. Brown's Lumber Co., 196 Cal.App.2d 530, 533, 16 Cal.Rptr. 628; Kite v. Coastal Oil Company, supra, 162 Cal.App.2d 336, 345, 328 P.2d 45; and see Burr v. Sherwin Williams Co., supra, 42 Cal.2d 682, 691–692, 268 P.2d 1041.)

In Kite, an instruction similar8 to the one here proffered by plaintiff was declared to be erroneous because its effect was to instruct the jury to draw the inference. It was there held that the instruction took away from the jury matters pertinent to the first and third condition, the determination of which were questions of fact to be determined by the jury.

The proposed instruction is erroneous in a further particular. The instruction proposes to tell the jury that if the inference of negligence preponderates over contrary evidence ‘it warrants a verdict for the Plaintiff.’ The instruction ignores the defense of contributory negligence which was raised in the present case and in support of which there is ample evidence. (See Kite v. Coastal Oil Company, supra, 162 Cal.App.2d p. 345, 328 P.2d p. 51; Welker v. Scripps Clinic etc. Foundation, 196 Cal.App.2d 338, 344, 16 Cal.Rptr. 538.) The jury should have been told that if the inference alone or with other evidence preponderates over evidence to the contrary it warranted a finding that defendant was negligent. Similar language as used in the instruction in question was declared to be erroneous in Kite and in Walker. The instruction given by the trial court in Kite, and adopted in format by plaintiff in his proffered instruction in the present case, apparently has its origin in Dieterle v. Yellow Cab Co., 53 Cal.App.2d 691, 128 P.2d 132, where it was approved. We have found no case in this state, nor has any been cited, which alludes to or cites the Dieterle case with respect to the property of this instruction; nor does Kite or Welker make any reference to Dieterle. Suffice it to say, a reading of Dieterle discloses that the case involved an action for damages for personal injuries sustained by a taxicab passenger wherein contributory negligence was not a defense or an issue.

We also have misgivings regarding the portion of the instruction concerning defendant's obligation to rebut the inference of negligence. Such instruction, while technically correct, is incomplete in that it does not give the jury the necessary criteria9 for determining whether defendant ‘did, in fact, exercise ordinary care and diligence’ or ‘that the accident occurred without being proximately caused by any failure of duty on his part.’ (See Fry v. Sheedy, supra, 143 Cal.App.2d 615, 627, 300 P.2d 242; Dierman v. Providence Hospital, supra, 31 Cal.2d 290, 295, 188 P.2d 12.) This lack of completeness was advantageous to defendant, and therefore is a defect about which he cannot complain.

In summary, while it would have been proper for the trial court to have instructed on res ipsa loquitur, it would have been error to have instructed in the form and manner of plaintiff's proffered instruction. Accordingly, the lower court was justified in refusing to give the requested instruction.

The judgment is affirmed.

FOOTNOTES

1.  On direct examination plaintiff testified: ‘* * * I just never stopped going backwards. I just hit the floor.’

2.  On redirect examination plaintiff's testimony was as follows: ‘Q And would you describe to us what happened, please? A Well, I leaned back, and I just kept on going. Q And what was the next thing that you, then, recall? A Being on the floor. Q And were you still attached to the seat, when you were on the floor, in any way? A Yes sir. Q In what manner? A Well, as near as I can remember, my knees were over the front of the chair, such as I am now; only I was laying down. Q On your back? A That's right. Q Were your feet up and over the seat of the chair? A. That's right.’

3.  The witness stated: ‘No, we didn't feel it was necessary to post a warning sign on it, or anything. It is just like when streets are wet, they are slippery. A chair that is old is probably not likely to be as safe as a modern chair.’

4.  The form of such basic instruction is that suggested by BAJI No. 206 (Revised 1962) and is as follows: ‘From the happening of the accident involved in this case, in inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. ‘When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defendant's negligence. If the evidence tending to prove that the accident was caused by a failure of the defendant to exercise the care required of him has greater weight than the evidence to the contrary, you will find in favor of the plaintiff on that issue. ‘In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, that is, a definite cause for the accident, in which there is no negligence on the part of the defendant, or (2) such care on the defendant's part as leads to the conclusion that the accident did not happen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.’

5.  Such preliminary instruction is suggested in the following form by BAJI No. 206–B (Revised 1962): ‘If, and only in the event that you find [that an accident occurred as claimed by the plaintiff] [and] [that the plaintiff suffered injury as claimed] namely, * * * you are instructed as follows.’

6.  A form of such instruction is that suggested in BAJI No. 206–A (Revised 1962) to wit: ‘One of the questions for you to decide in this case is whether the accident involved occurred under the following circumstances: ‘First, that it is the kind of accident which ordinarily does not occur in the absence of someone's negligence; ‘Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant, [originally, and which was not mishandled or otherwise changed after defendant relinquished control]; and ‘Third, that the accident was not due to any voluntary action or contribution on the part of the plaintiff. ‘If, and only in the event that you should find all these conditions to exist, you are instructed as follows.’ NOTE: The foregoing instruction is adapted to a situation where the jury must determine whether all of the conditions are present. If one or two of these conditions exist as a matter of law they should be omitted from the instruction.

7.  It should also be noted that in Davis v. Memorial Hospital, 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561, the court was of the opinion that the statement of the second condition in the instruction before it, i. e., that it “was caused by an agency or instrumentality in the exclusive control of the defendant” should have been stated in more specific language. (P. 819, of 58 Cal.2d, p. 635 of 26 Cal.Rptr., p. 563, of 376 P.2d.)

8.  The instruction read as follows: “From the happening of the accident involved in this case as established by the evidence, an inference arises that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference itself is a form of evidence, and if none other exists tending to overthrow it, or if the inference, either alone or with any other evidence supporting it, preponderates over contrary 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 did, in fact, exercise ordinary care and diligence or that the accident occurred without being proximately caused by any failure of duty on its part.” (P. 344, of 162 Cal.App.2d p. 50 of 328 P.2d fn. 3.) It should be noted that the instruction before us is more restrictive in that there has been substituted, in the first sentence, the following language: ‘If, and only in the event, you should find that the chair in question collapsed in the manner as claimed by the Plaintiff. * * *’

9.  This criteria, as suggested in Fry and Dierman is substantially as incorporated by the authors of BAJI No. 206, ante.

MOLINARI, Justice.

BRAY, P. J., and SULLIVAN, J., concur.