v. (1957)

This is an appeal from a judgment for defendant in an action to recover damages for personal injuries sustained in a collision between two automobiles.

On the morning of February 12, 1954, at about 7:15 a. m., plaintiff was riding in the automobile of defendant Mitchell on Sepulveda Boulevard in the city of Manhattan Beach, Los Angeles County. They were en route to work at a refinery. Plaintiff had been riding with defendant Mitchell for several weeks and testified that he paid 50 cents a day for transportation. Defendant Mitchell denied that plaintiff paid him any compensation.

The accident occurred at the intersection of Sepulveda Boulevard and 22nd Street. The latter street approaches Sepulveda Boulevard from the east and dead-ends at the boulevard, thus creating a ‘T’ intersection. 22nd Street is about 30 feet wide at the intersection, while Sepulveda Boulevard is about 90 feet wide. The latter accommodates three lanes of northbound and an equivalent number of southbound traffic. There are no traffic controls on Sepulveda Boulevard, but there was a reflector stop sign on 22nd Street. Defendant Mitchell and plaintiff were in the lane next to the center line on Sepulvada, traveling north, and had been in that lane for three blocks or more before the accident occurred.

Plaintiff called witnesses and examined them in detail. He testified that the vehicle in which he was riding with defendant Mitchell was traveling about 30 miles per hour, that there were two lanes to his right and he did not recall any cars occupying them. When the automobile in which he was riding proceeded about five feet into the intersection he saw defendant Noble's vehicle about six feet away, traveling westbound, that he then called out ‘look out’ and the impact took place.

Defendant Mitchell testified that he approached the intersection in question, traveling north on Sepulveda in the lane next to the center, that cars on his right slowed and stopped, that he commenced to slow and brought his car to a stop a foot or two inside of the intersection whereupon a westbound car struck his right front wheel, fender and bumper.

Plaintiff called Harry L. LaVasseur and William Bahr, the owners of the service station at the corner in question. The former actually witnessed the accident and so testified. Bahr heard the noise of the impact, immediately looked up and described events immediately occurring thereafter.

There were other vehicles traveling northward on Sepulveda Boulevard, grouped together to the right of Mitchell's car, traveling about the same speed as Mitchell. The two lead cars of this group were traveling abreast of each other to the right and in front of Mitchell's car. Defendant Noble testified that as he approached the intersection on 22nd Street, he came to a stop at the stop sign, which is about fifteen feet east of the east curb line of Sepulveda Boulevard. Noble was stopped approximately fifteen seconds, and then moved towards the intersection, but did not enter the intersection because of traffic which was backed up from the stop signal, one block to the north. He looked to the south and to the north. As he was stopped at the stop sign, Noble could see three hundred yards to the south, and he saw a group of automobiles traveling northward, about three hundred yards away. There were no other cars traveling northward on Sepulveda Boulevard between the group of cars which Noble saw coming from the south about three hundred yards away and those cars that were passing Noble immediately in front of him. There were approximately ten cars in the group coming from the south. Noble began to pull into, and had entered the intersection before these cars arrived at the intersection. The first car in the outside lane was traveling northward approximately one hundred and twenty yards away from Noble when Noble's front wheels passed into the intersection, at a speed of approximately twenty-five miles an hour, and this car was slowing down. The lead car in the center lane of the three lanes traveling northward also started to slow down to allow Noble to proceed through the intersection. Noble testified that he gave an arm signal for a left turn. As he proceeded into the intersection his speed was three to five miles per hour. Noble may have seen one or two cars traveling north in the inside lane of traffic next to the center line as Noble's car entered the intersection, but he could only see the tops of the cars in the inside lane next to the center line of Sepulveda Boulevard. Mitchell's car was first seen by Noble when it was approximately twenty-five feet away from Noble's car. Two cars in the two other lanes had stopped approximately abreast of each other. Mr. Noble's vision of automobiles traveling into the lane next to the center line of Sepulveda Boulevard had been increasingly obstructed as the group of vehicles approached the intersection, so that Noble did not see the car with which he collided until he had passed in front of the cars which were stopped in the first two lanes, that is, the outside and center lanes for northbound traffic. He applied his brakes immediately upon seeing the Mitchell car, because he realized that Mitchell's car was not slowing down. Noble had proceeded stright west into the intersection and was intending to make a left turn. The collision occurred in the inside lane in which Mitchell was traveling.

Before the accident Mr. Mitchell saw northbound traffic ahead and to his right slowing down at 22nd Street, so he began to slow down. Defendant Mitchell did not know why the other cars were slowing down, and at the time he applied his own brakes he did not see Noble's car, and he did not see defendant Noble's car until just about a second before the two cars hit. The front of Mitchell's automobile was about a foot into the intersection at the time of the impact, causing damage to the right front of the Mitchell automobile. Plaintiff, who was seated on the righthand side of defendant Mitchell's automobile, fell forward as a result of the collision and sustained severe injuries to his back and spine in the lumbo-sacral area.

Trial before a jury resulted in a verdict in favor of both defendants. Motion for a new trial was denied. From the judgment entered upon the verdict, plaintiff prosecutes this appeal.

As his first ground for a reversal, appellant contends that although no instructions on the doctrine of res ipsa loquitur was requested by him, the trial court committed prejudicial error in giving the following instruction requested by defendant: ‘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.’ (Emphasis added.)

Appellant urges that in giving this admonition the jury was prevented from considering the evidence provided by the happening of the accident itself in determining whether either respondent was negligent. We are therefore confronted with the questions of whether the giving of the above-quoted instruction was, in this case, prejudicially erroneous, and whether the evidence in this case is of such a character that the doctrine of res ipsa loquitur would apply to either one or both of the respondents.

While the parties herein first are in dispute as to whether the doctrine of res ipsa loquitur is applicable in the case at bar, they are in accord that the doctrine has these 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 have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff (Barrera v. De La Torre, 48 Cal.2d 166, 308 P.2d 724.

From a consideration of the case just cited, we are convinced that the instruction complained of was properly given in the absence of a request for an instruction with respect to the doctrine of res ipsa loquitur, unless it can be said in the instant case, that as a matter of law, the doctrine just mentioned was applicable (Barrera v. De La Torre, supra, 48 Cal.2d 170, 172, 308 P.2d 727, 728). Respondent Noble concedes the correctness of this rule.

We are persuaded that in the case now engaging our attention, insofar as appellant herein is concerned, the three elements necessary to effectuate application of the doctrine of res ipsa loquitur were present. It is conceded that the automobiles involved were under the exclusive control of respondents. This fulfills the first requirement. As to the second element, we are impressed that a collision at an intersection protected by a stop-sign, does not, in the light of human experience, happen unless someone is negligent. As to the third and final element for application of the doctrine, it is certainly established, since appellant was riding as either a passenger or a guest in the automobile of respondent Mitchell, and there is no contention that the collision occurred due to any voluntary act or contributing fault on the part of appellant. In the case of Barrera v. De La Torre, supra, 48 Cal.2d at page 170, 308 P.2d at page 727, it was stated, quoting from Middleton v. Post Transp. Co., 106 Cal.App.2d 703, 705, 235 P.2d 855, 856, “In the present case the jury were entitled to find that certain elements of the doctrine of res ipsa loquitur were not present; therefore such doctrine became inapplicable and the jury were properly advised that they could not draw an inference of negligence on the part of defendant merely because an accident had happened [citing cases]”. In the instant action such is not the case. As we have pointed out, all of the elements of the doctrine of res ipsa loquitur were present and it must be held that as a matter of law, the doctrine in question was applicable for it is manifest that in the case now before us, where both drivers were before the court, it cannot be said as a matter of law, that both of them were free from negligence under the explanations offered by either driver. We are therefore constrained to hold that the principles enunciated by the Supreme Court in Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7, are applicable, and that while no instructions on the doctrine of res ipsa loquitur were requested, the jury in the instant action should not have been foreclosed from considering the evidence provided by the happening of the accident itself in determining whether either respondent was negligent. Furthermore, in the case at bar, as in the case just cited (44 Cal.2d at page 329, 282 P.2d at page 8) the court gave an instruction on unavoidable accident, which in the opinion of the appellate court ‘aggravated’ the error committed in giving the same instruction here complained of.

Respondents' contention that appellant offered evidence of the specific acts of alleged negligence causing the injury does not aid them because such proof does not preclude application of the doctrine of res ipsa loquitur (Rasmus v. Southern Pacific Co., 144 Cal.App.2d 264, 270, 301 P.2d 23). We have therefore, concluded that under the facts present in the case now engaging our attention, the trial court committed prejudicial error in giving the instruction which foreclose the jury from considering the evidence provided by the happening of the accident itself in arriving at a verdict as to whether respondents were, or either of them was negligent.

Under appellant's theory as advanced at the trial, he was riding as a passenger in the automobile driven by respondent Mitchell, while the latter contended that the former was riding as a guest. Nevertheless, on the question of negligence, the doctrine of res ipsa loquitur applies (Baker v. Novak, 144 Cal.App.2d 514, 521, 301 P.2d 257). And, the single instrumentality theory in colliding vehicle cases where two defendants are involved, as in the instant case, each in control of a separate vehicle, has been abandoned (Ybarra v. Spangard, 25 Cal.2d 486, 493, 154 P.2d 687, 162 A.L.R. 1258 and cases therein cited). The doctrine here in question applies in a guest case involving a collision between two vehicles. ‘When the relationship between the parties and the defendant's duty have been shown, a plaintiff free from negligence, has established a prima facie case when proof is made that he has sustained an injury in a collision between the vehicle driven by the defendant and another vehicle. And this is so, whether the defendant be a common carrier or a private carrier, and the plaintiff a passenger for hire or a guest (Godfrey v. Brown, 220 Cal. 57, 67, 29 P.2d 165, 93 A.L.R. 1092). The reasons herein advanced by us for application of the doctrine of res ipsa loquitur find support in the language of our Supreme Court in the case just cited, wherein, 220 Cal. at page 66, 29 P.2d at page 168, it is said: ‘The foundation or reason for the doctrine is based upon probabilities and convenience. When it is shown that the occurrence is such as does not ordinarily happen without negligence on the part of those in charge of the instrumentality, and that the thing which occasioned the injury was in charge of the party sought to be charged, the law operating upon the probabilities and the theory that if there were no negligence the defendant can the most conveniently prove it raises a presumption of negligence which the defendant must overcome by proof that there was in fact no negligence. [Citing cases.] In other words, as is said in the first-cited case: ‘* * * To justify its application in any case, the circumstances of the accident must be such as, unexplained, afford reasonable evidence of want of care in a respect for which the defendant is liable in the particular action. * * *’'

Since the judgment must be reversed and a new trial may be had, we shall give consideration to appellant's final contention that the court committed prejudicial error in modifying certain instructions requested by him. In this regard, the record reflects that appellant requested an instruction in the language of BAJI (3rd Rev.Ed.) No. 112, reading in part as follows: ‘The issues to be determined by you in this case are these:

‘First: Was the defendant negligent?

‘If you answer that question in the negative you will return a verdict for the defendant.’

This instruction was modified as indicated by italics, and as given read as follows:

‘Subject to the instructions on passengers and guests in the Mitchell case just read to you, the issues to be determined by you in this case are these:

‘First: Was either defendant negligent, or were both defendants negligent?

‘If you answer that question in the negative, as to either defendant, or both defendants, you will return a verdict for that defendant or the defendants.’

A further instruction was requested by appellant in the language of BAJI (3rd Rev.Ed.) Nos. 115 and 115a, and which was modified as indicated by italics as follows:

‘The burden is upon the plaintiff to prove by a preponderance of evidence that either defendant was negligent and that such negligence was a proximate cause of injury to the plaintiff. If plaintiff fulfills this burden as to either defendant, he is entitled to recover from that defendant. If plaintiff fails in carrying this burden as to either defendant, that defendant is entitled to a verdict.’

It is appellant's contention that by the first instruction above set forth, the jury was manifestly confused because by it they were advised, ‘to determine whether either defendant was negligent or whether both defendants were negligent, and if that question is answered in the negative as to either defendant or both defendants, the jury must return a verdict for that defendant or the defendants. Stated differently if the jury found any defendant negligent in this case, it may return a verdict for the defendants, which means both defendants.’

As to the second above quoted instruction, appellant insists that the court erroneously inserted the word ‘either’ in the second line thereof, when the correct insertion would have been the word ‘any’.

In the words of a recent decision (Chadek v. Spira, 146 Cal.App.2d 360, 303 P.2d 879, 883) appellant's criticism of the wording of the instructions herein ‘borders on mere quibbling.’ An examination of all the instructions given, entirely refutes appellant's claim that the challenged instructions resulted in confusion and invited error by permitting a misinterpretation thereof, so that if the jury should find for one respondent a finding for the other would be required. Since there were two defendants at the trial, the first instruction above referred to could not be given as submitted by appellant because it is drawn to fit a case wherein there was but a single defendant. Furthermore, since the issue as to the status of the appellant in the automobile of respondent Mitchell was in dispute, it was necessary for the court to call to the attention of the jury the fact that if appellant was a guest in respondent Mitchell's vehicle, more than negligence as to the latter respondent had to be shown.

As to respondent Noble, one of the issues was whether he was negligent in the operation of his automobile.

As pointed out by respondent Noble in his brief,

‘The instruction carefully pointed out that the instructions speaking of passengers and guests applied only to the Mitchell case. Nothing in the instruction of which plaintiff complains can be construed to mean that this respondent Noble would in any way be held to any lesser degree of care if the plaintiff turned out to be a guest in the Mitchell car. Nor was the instruction as modified reasonably subject to the construction which plaintiff now puts on it, namely, that if by chance the codefendant, Charles Mitchell, was found to be negligent only, this would also exonerate the defendant Noble. We think that the language employed in the modified instruction is as clear as language can be. In the clause to which the criticism of appellant is mainly directed, the term ‘either defendant’ clearly correlates with the later term ‘that defendant,’ and the words ‘both defendants' clearly correlate with the words ‘the defendants.’ Appellant's quotation from Webster's Unabridged Dictionary shows clearly that the word ‘either’ can be used to express an alternative sense, and the context of the modified instruction makes it perfectly clear that the word ‘either’ was in fact intended to convey an alternative meaning appellant himself shows.'

We are far from persuaded after reading all of the instructions given, that appellant was at all prejudiced by the instructions here under attack; the burden rests upon the appellant in every case not only to affirmatively show error, but to also establish further that the error is prejudicial (Vaughn v. Jonas, 31 Cal.2d 586, 601, 191 P.2d 432).

The judgment is reversed and the cause remanded for a new trial.

WHITE, Presiding Justice.

DORAN and FOURT, JJ., concur.