BORENKRAUT v. DBA (1961)

Plaintiff, who sued for damages for personal injuries, appeals from the judgment based upon a jury verdict in favor of defendants Robert Whitten and Dave Roy, doing business as Bob and Dave's Service Station. Plaintiff's 1950 Ford automobile having stalled, she was pushed into defendants' service station. She thought the car was out of gas. Patrick A. Harryman, one of defendants' station attendants, tried the starter without success. Another attendant, one Randen, came up and suggested that he try to suck gasoline into the carburetor; he placed his hand over its throat while Harryman pressed the starter, with no results. They then decided to prime the carburetor and Randen raised the hood, removed the air cleaner, saw there was no gas in the carburetor and proceeded to pour gasoline into it; according to plaintiff ‘he was pouring it like you pour water into something’; Harryman in the driver's seat depressed the starter. Plaintiff had vacated that seat for Harryman, had walked around the car and was standing on the right side of the hood watching the priming. Suddenly a backfire occurred, flames shot out from under the hood toward the plaintiff, there was a ‘big wham,’ flames came through the carburetor; Harryman said, ‘as I let my finger off the starter, just at about the same moment I saw this flame between the hood and the cowling of the car.’ Plaintiff was burned and brought this suit for the recovery of damages for her injuries.

This is the second jury verdict in favor of defendants. Appellant does not claim insufficiency of the evidence. Her counsel center upon the giving and refusing of certain instructions.

The court instructed on the subject of contributory negligence. Appellant argues that this was error because there was no substantial evidence to support that plea. We agree. Plaintiff knew nothing about carburetors or priming of stalling engines. She vacated the driver's seat so that Harryman might use the starter. She heard Randen say he was going to put gas through the carburetor. He lifted the hood and worked on the left side of the car; she walked around it and stood on the right side watching him; she was about two feet from the fender. No one warned her of the possibility or probability of an explosion and she had no reason to realize that there was danger of one. Unless and until alerted to the contrary she had a right to assume that other people, specifically the station attendants, would exercise due care in their activities. Rodela v. Southern Cal. Edison Co., 148 Cal.App.2d 708, 716, 307 P.2d 436; Kavner v. Holzmark, 185 Cal.App.2d 138, 8 Cal.Rptr. 145. In this picture there is nothing to suggest more than the possibility of negligence on her part—no substantial evidence from which a reasonable inference of contributory negligence could be drawn. The instructions on this subject were erroneously given.

The plaintiff requested and the court refused the following instruction: ‘Because of the great danger involved in the pouring of gasoline down an open carburetor and starting the automobile while persons are in the area of the open carburetor, a person of ordinary prudence will exercise extreme caution when engaged in such an activity. Hence, it is the duty of anyone pouring gasoline through that carburetor or attempting to start the automobile under those circumstances to exercise extreme caution.’ This was an adaptation of BAJI instruction No. 102–D.¹ That it correctly states the law seems clear. Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12, 17: ‘The risk incident to dealing with five, firearms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids requires a great deal of care to be exercised. In other words, the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence (Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A.,N.S., 134]; Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 75 [265 P.2d 513]; Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217, 221 [162 P.2d 486]).’ Speaking of butane gas the court said in Signorelli v. Potter, 43 Cal.2d 541, 543, 275 P.2d 449, 450: ‘It is inflammable, explosive, and highly volatile. Those who control it must use the utmost care to prevent its escaping.’ To the same effect see, Lewis v. Bjornestad, 111 Cal.App.2d 409, 412, 244 P.2d 497; Johnson v. Nicholson, 159 Cal.App.2d 395, 406, 408, 324 P.2d 307; Ambriz v. Petrolane, Ltd., 49 Cal.2d 470, 477, 319 P.2d 1; 35 Cal.Jur.2d § 172, page 686.

It is familiar law that each party is entitled to instructions covering his theory of the case when supported by substantial evidence. (48 Cal.Jur.2d § 188, p. 216.) Respondents say that the instructions actually given sufficed for this purpose. They cite instructions such as the following which was given: ‘The amount of caution required of a person in the exercise of ordinary care depends upon the danger which is apparent to him or should be apparent to a reasonably prudent person in the particular situation and circumstances involved.'² But as was said in Gilbert v. Pessin Grocerty Co., 132 Cal.App.2d 212, 224, 282 P.2d 148, 158: ‘[T]his language is general while the requests of plaintiff gave specific application of the same principle to her theory of the case. They are correct in their content and appellant should not have been required to rest upon generalities.’ Novak v. Peira, 175 Cal.App.2d 29, 33, 345 P.2d 349, 352: ‘A court instructing a jury on the amount of care required must relate that duty to both the degree of care and the circumstances peculiar to the case being tried.’ See also, Stout v. Southern Pacific R. R. Co., 127 Cal.App.2d 491, 503, 274 P.2d 194; Pandell v. Hischier, 166 Cal.App.2d 693, 697, 333 P.2d 762; Hildebrand v. Los Angeles Junction Ry. Co., 53 Cal.2d 826, 831, 3 Cal.Rptr. 313. The requested instruction should have been given.

Appellant complains of the court's refusal to give her requested instruction upon res ipsa loquitur. As proffered it starts with this language: ‘From the happening of the accident involved in this case, an 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. * * *’ As applied to the facts at bar the giving of this instruction would have been erroneous. Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915, 922, 53 A.L.R.2d 124: ‘[T]he jury, under appropriate instructions, should have been permitted to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur were present.’ Anderson v. County of Santa Cruz, 174 Cal.App.2d 151, 155, 344 P.2d 421, 424: ‘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 ipsa loquitur are present.’

Plaintiff's evidence was to the effect that the service station attendants were negligent in that one poured too much gasoline into the carburetor and the other simultaneously depressed the starter button; inferentially that this was the cause of the backfire or explosion which resulted in plaintiff's injuries. Defendants' experts testified that these things if done would not have been causative factors in producing the backfire; that (as almost any male automobile driver knows) too much gas in the carburetor would kill the engine if running and would prevent ignition if the car was stalled. These experts said the process of priming pursued by the attendants was a proper one, and inferentially that the backfire in question was due to some internal defect in the engine. It seems to be agreed that the fuel pump was defective, but it also appears that that would not be a cause of a backfire, which ordinarily occurs down in the chamber. Randen expressed the opinion that gasoline fumes were ignited by sparks caused by the starter. Defendants' expert Snyder, on cross-examination:

‘Q. Sir, if the valve is left open, sticky valve, when the piston goes up, you have the firing stroke, the fire from the sparkplugs is going to ignite with the gas, isn't that true, the gas and vapor? A. to a limited extent. It doesn't fire because it has squirted most of the gas and air back out if the intake valve remains open, then as the piston comes up on the compression stroke it pushes most of the gasoline vapor back out of the engine chamber, so when it gets up to the top the airgas mixture is not under compression and there is very little of it. There is only a small amount in the top. So if then the piston, the sparkplug fires, you have a very light explosion, a very light ignition. In that case if the valve is still open you may get an ignition which will travel over through the intake valve and up into the carburetor to form a real backfire. Q. All right. What you have just told us is this: That if you have a sticky valve or valve that does not close when it should, and the gas and air are coming through the intake valve, and we have the down stroke, you have the firing, the firing whereby the spark plugs fire, you have the ignition of the fire with the gas and air causing the backfire or causing that to go through the intake valve again; isn't that correct? A. It may go back through the intake valve. It depends on how widely it is open and out into the manifold to form a true backfire, yes.’ Though the car was inspected and towed away plaintiff offered no evidence to explain what other defects, if any, were found in the six-year-old second hand car.

This testimony brought the case within the purview of La Porte v. Houston, 33 Cal.2d 167, 199 P.2d 665, wherein it appears that a carburetor adjustment of an automobile was being made by certain mechanics in a garage. ‘According to plaintiff the mechanic ‘made some adjustment and he accelerated the motor a few times and made a few more adjustments and then he raced the motor up higher, with forcefulness, and then he ran it for two or three times * * * and * * * left the motor running pretty severely and all of a sudden’ the car lurched forward. It struck plaintiff and broke his leg.' 33 Cal.2d at page 169, 199 P.2d at page 665. The court in affirming the refusal to give a res ipsa instruction said, 33 Cal.2d at page 170, 199 P.2d at page 666: ‘It was at least equally probable that the accident was caused by some fault in the mechanism of the car for which defendants were not liable as that it resulted from any negligent act or omission of the mechanic. Accordingly, it cannot be said that it is more likely than not that the accident was caused by the negligence of defendants, and hence the case was not a proper one for the application of the doctrine of res ipsa loquitur.’

It is also true that the requested instruction would have taken from the jury the decision of the basic facts upon which the propriety of applying the inference of res ipsa loquitur depended. Hence it was properly refused. See, Seneris v. Haas and other authorities cited supra.

While the ruling on res ipsa was correct, the giving of instructions upon contributory negligence and refusal of the one concerning amount of care to be exercised by a person handling dangerous substances were erroneous. Determination of whether this effected a micarriage of justice requires us to make ‘an examination of the entire cause, including the evidence,’ in order to form an opinion whether the errors complained of were prejudicial within the purview of Constitution, Article VI, § 4 1/2. People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254, teaches: ‘That a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' The required examination has been made and we are convinced that the result would not have been different in the absence of the said errors.

The issue of contributory negligence seems to have been decided in favor of plaintiff, for the verdict reads: ‘We, the jury in the above entitled action, find for the defendants Robert Whitten and Dave Roy dba Bob and Dave's Service Station and against plaintiff Yetty Borenkraut. Not Guilty of Negligence.’ The words ‘not guilty of negligence’ appear to be in the handwriting of the foreman, and though surplusage (Keating v. Zumwalt, 91 Cal.App.2d 845, 847–849, 206 P.2d 10; 48 Cal.Jur.2d § 252, p. 262), we believe them helpful in determining whether the jury was influenced by the instructions on contributory negligence. Moreover, we think no sensible jury could have decided that issue against the plaintiff.

The refusal of the instruction concerning handling of dangerous substances was tempered by these remarks which were volunteered by the court during the taking of evidence: ‘We have got to admit and I think the jury understands that when you are fooling with gasoline, especially some of these modern gasolines, you are dealing with a dangerous and a highly explosive substance which we handle easily only because we are so familiar with it, but it hasn't lost any of its dynamite. In fact it is getting worse, but that has nothing to do with a question as to a custom and practice in the industry.’ Standing alone, this error could not have proved prejudicial.

Finally, the evidence of negligence on defendants' part is so unconvincing and that of defendants' exercise of care so persuasive we have concluded that the judgment is a just one and there has been no miscarriage of justice in any sense of the word.

Judgment affirmed. Attempted appeal from order denying new trial dismissed, it not being appealable (Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907).

FOOTNOTES

1.  BAJI No. 102–D: ‘Because of the great danger involved in the * * * a person of ordinary prudence will exercise extreme caution when engaged in such an activity. Hence it is the duty of anyone [handling such a instrumentality] [engaged in such an operation] [managing or participating in such an activity] to exercise extreme caution.’

2.  Also given were these: ‘* * * Negligence is not an absolute term, but a relative one. By this we mean that in deciding whether there was negligence in a given case, the conduct in question must be considered in the light of all the surrounding circumstances as shown by the evidence.’ ‘One test that is helpful in determining whether or not a person was negligent is to ask and answer whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that some one might have been injured by or as a result of this action or inaction. If such a result from certain conduct would be foreseeable by a person of ordinary prudence with like knowledge and in like situation, and if the conduct reasonably could be avoided, then not to avoid it would be negligence.’

ASHBURN, Justice.

FOX, P. J., concurs.