LA PORTE v. HOUSTON (1948)

Appellant sued for damages suffered when his own automobile at the garage of respondents lurched forward against him while it was being serviced by respondent Krussel. Judgment having been entered upon an adverse verdict he now demands a reversal upon the grounds (1) that the court refused to instruct upon the doctrine of res ipsa loquitur, and (2) erroneously instructed an appellant's assumption of risk and (3) on unavoidable accident.

Pursuant to the suggestion of a mechanic in the employ of respondents a week prior to the events here discussed, appellant drove his hydromatic Oldsmobile into the garage of respondents for the purpose of having them do their ‘regular tune-up job.’ At the time the car made its sudden leap no one was working on it except respondent Krussel. Because of such fact appellant insists that the doctrine of res ipsa loquitur applied. However, respondents contend, and produced substantial evidence to show that the conduct of the machine was so strange that they had never observed or heard of it before, and that they were therefore free from negligence in the premises. An appraisal of the two contentions and of the events that transpired prior to the unfortunate incident will be facilitated by first describing the construction of the transmission with reference to its gear shift.

The gears are shifted by moving a lever attached to the steering post. The lever is connected with a slot of four divisions, the first of which is the neutral, marked ‘N.’ When the lever stands in ‘N’ the motor is detached and cannot transmit its power to the machinery that drives the wheels. It is so constructed that the starter will not turn unless the gear is in ‘N.’ To insure against the movement of the car in operating the starter another lever is attached to the starting pedal which the starter causes to strike the shifting lever, throwing it into neutral. Other slots are designated ‘drive’, ‘low’, and ‘reverse.’ Properly to park appellant's vehicle a lever on the left side of the dash board is used to set the brake and the gear lever is put in the neutral slot. By such process appellant parked his machine in the garage on a slope at a slight angle from due south, the front being about three feet from a two foot brick pillar which stood slightly to the west of the center of the vehicle. The left half of its front was clear of the pillar and the space to the left and rear of the machine was open. On parking appellant put it in neutral, disconnected the ignition, set his brakes and left it for the tune-up.

In appellant's absence respondent Krussel cleaned and reset the carburetor and on checking the parts found all in a satisfactory condition. While he gave it the treatment the brake continued set and the transmission remained in neutral, except that further to test the machine Krussel occupied the driver's seat and stepped on the accelerator. The vehicle did not move although the motor ran smoothly. An hour later Krussel was hailed by appellant, who having started the motor told Krussel there was still some trouble. The latter, having stated that he would retest and readjust the carburetor, took his screw driver to the right side and again began to adjust that device. For a minute appellant occupied the driver's seat as Krussel raced the motor. He then took a position in front of the vehicle while Krussel continued his usual customary routine of checking and adjusting, when suddenly the pile of inanimate steel became a thing of life, leaped against both appellant and the pillar, causing the latter's injuries.

The occurrence of this strange phenomenon baffled the experts. Appellant had no knowledge of such internal condition as would have made such antic possible, inasmuch as it had never before offended by the same or similar behavior. Neither had either of the respondents ever contacted a motor car that shifted automatically from a neutral to a drive position and back to neutral again after it had moved forward. But because Krussel was still engaged in an attempt to adjust its inward parts appellant sought to induce the trial court to instruct the jury on the doctrine of res ipsa loquitur.

That the jump of the car was not because of Krussel's racing the motor is established by the fact that appellant had raced it even faster only a moment before the accident. Appellant had driven the car for three years without having witnessed the phenomenon or known of its possibility. Mr. Krussel had been a motor mechanic for over 20 years yet he never suspected the possibility of such an incident. The witness Paden, although he had been schooled by General Motors, makers of the Oldsmobile, had never known of such an occurrence. The witness Richardson, an Oldsmobile expert, assistant service manager of an Oldsmobile agency, testified on behalf of appellant that he had known of some instances where an Oldsmobile moved forward on application of gas, with the gear shift in neutral and brakes not set; that it is not normal for that make of car to give such a demonstration; that he did not know the cause but gave a theoretical exposition of how it might occur when the motor when accelerated is thrown to the right, creating a strain on the shift lever mechanism and throttle.

The jury and the trial court did not regard this testimony of such character as to warrant the finding that respondents should reasonably have anticipated the lurch. In fact Richardson testified that no one can tell in advance when an Oldsmobile will do this—‘not more than one car in a thousand.’ It was not the kind of an occurrence which is contemplated by the doctrine of res ipsa loquitur and which ‘does not ordinarily occur in the absence of negligence.’ In fact the evidence is overwhelming that the phenomenon occurs so infrequently that it may be classified as one that had never been witnessed by the majority of mechanics. It was not caused by an agency or instrumentality within the exclusive control of respondents. Having brakes set and the gear lever in neutral as the mechanic tested the motor answered every requirement of reasonable caution. If there was a potential peril within the machinery of the automobile wholly unknown to respondents which could not have been discovered by ordinary care then it was not within their control, exclusive or otherwise. Their control of it was possible only if they had knowledge of its existence or reasonable cause to suspect it. It follows that since reasonable care was exercised by respondents in testing the motor and since the lurch was not caused by an agency or instrumentality within their exclusive control the doctrine of res ipsal loquitur was not applicable. Sutera v. Palmieri, 79 Cal.App.2d 359, 363, 180 P.2d 414.

The authorities cited by appellant do not reach such a situation as is found in the instant case. Lincoln v. Quick, 133 Cal.App. 433, holds at page 437, 24 P.2d 245, at page 247, that the doctrine of res ipsa loquitur applies ‘only where the plaintiff does not know what caused the accident and negligence may be presumed from the fact that an accident occurred, in view of the general circumstances.’ John v. B. B. McGinnis Co., Inc., 37 Cal.App.2d 176, 99 P.2d 323, and Cooper v. Quandt, 105 Cal.App. 506, 288 P. 79, both disclose facts that present ideal illustrations for the correct application of the doctrine. Miss John fell through a trap door in McGinnis' store. The Quandts admitted that one of their employees had dropped the plank that caused plaintiffs' injury. Keller v. Pacific Telephone & Telegraph Co., 2 Cal.App.2d 513, at page 525, 38 P.2d 182, at page 187, holds that the doctrine is applicable only in the absence of ‘actual knowledge of just how an accident occurs. * * * The very hypothesis of the doctrine is that the plaintiff has no knowledge of just what caused the accident, and that, since the instrumentality by means of which the accident occurred is solely within the control of the defendant, negligence will be inferred upon proof of a prima facie case, in the absence of an adequate explanation of the part of the defendant exempting him from liability.’ The evidence of respondents as to the cause of the accident in the instant case is sufficiently adequate to exculpate them from a finding of negligence. In Meyer v. Tobin, 214 Cal. 135, 4 P.2d 542, 543, plaintiff repaired the concrete mixer of defendant and followed it to observe the results of his handicraft. As the machine proceeded along the street the container suddenly fell upon plaintiff. Defendant introduced testimony to the effect that there were four ways in which the container might fall and that neither was the cause of the accident. But he did not sustain his burden by proof that had ‘some tendency to show that the accident occurred without the negligence of his employees.’

In taking his stand in front of the car appellant assumed the risk of its jumping toward him. Where knowledge of the danger of a situation is as accessible to plaintiff as to defendant, the doctrine of res ipsa loquitur is not applicable (Johnson v. Ostrom, 128 Cal.App. 38, 43, 16 P.2d 794); from which it is a fair deduction that if plaintiff has knowledge or the means of knowledge of the existence of a danger, or if the danger is obvious, he assumes such danger when he places himself in a position where it might strike. Wilmot v. Golden Gate Inv. Co., 41 Cal.App.2d 664, 668, 107 P.2d 263. Conceding that appellant did not know of the danger that his gear lever would automatically jump from the neutral slot to the drive slot, as he testified, by what mode of reasoning can he obviate the consequences of the danger of standing in front of his car parked frontwards on a declivity and undergoing a test? He was not there on the advice or suggestion of another. If either party then had means of knowledge of the peril it was appellant, who at the trial produced an expert mechanic to say that one time in a thousand the gear in a hydromatic transmission mysteriously connects with the engine, causing the standing car to leap. With such knowledge available he should have sought a place of safety out of bounds of the car's jump. By standing in front of it he assumed the dangers inherent in his own internally defective machine. To stand in front of an automobile headed down an incline while it is undergoing repairs at the hands of another may, in reckless daring or foolhardiness, be assimilated to the behavior of him who stands submissively before the ‘unloaded’ gun pointed toward his heart. By virtue of the common knowledge which adult men possess concerning the ‘unexpected’ incidents that inhere in devices which operate according to the laws of physics, appellant as an experienced motorist is in no position to complain that he was not directed where to stand for safety while his automobile was undergoing repairs. The instruction on the assumption of risk by appellant was not error.

Finally, it is contended that appellant was prejudiced by the instruction with reference to an unavoidable accident. Respondents both testified that the usual practice was followed by Krussel in setting the emergency brake and putting the gear lever in neutral. The witness Paden testified that the usual shop practice in tuning a motor of such an Oldsmobile as that of appellant is to ‘set your emergency brake and when you start the car it has to be in neutral.’ Mr. Richardson testified that it cannot be told in advance whether an Oldsmobile will leap when accelerated. In view of the conformance of respondent Krussel's procedure with customary practice and the inability of any one to prognosticate a lurch, the event complained of was correctly found to be unavoidable.

Burke v. John E. Marshall, Inc., 42 Cal.App.2d 195, 108 P.2d 738, and Riley v. Berkeley Motors, Inc., 1 Cal.App.2d 217, 36 P.2d 398, are cited by appellant in support of his claim that such instruction was error. Neither case is pertinent since in each there was proof of defendant's negligence.

In no view of the facts at bar can negligence be attributed to respondents. McBains' California Evidence Manual, sec. 421. Even though the lurch might have been avoided by putting the gear lever in ‘drive’ or ‘reverse’, such is not the usual practice in parking an automobile, and if the lever had been so placed Krussel could not have tested the motor. The machine was there for a ‘tuning up’ which was possible only with the motor disconnected.

The judgment is affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.