Phillips v. Noble , 50 Cal. 2d 163 ( 1958 )

CARTER, J.

I concur in the judgment of affirmance but upon the sole ground that the instruction here in question, while erroneous, was not prejudicial to plaintiff under the facts as disclosed by the record in this case. The instruction referred to reads as follows: “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.” In my opinion it is error to give the foregoing instruction in any negligence case. The declaration contained in this instruction is in direct conflict with the experience of everyone who has been involved in an accident. Barring accidents which may be solely the result of acts of God or of circumstances or conditions entirely beyond the control of the parties involved, it is inconceivable to me that an accident could happen in the absence of negligence on the part of someone. The instruction above quoted served no purpose except to confuse and mislead the jury, and in my opinion, plays a more important part in this direction than the erstwhile stock instruction on unavoidable accident (see Parker v. Womack, 37 Cal.2d 116 [230 P.2d 823] ; Butigan v. Yellow Cab Co., 49 Cal.2d 652 [320 P.2d 500]).

There is obviously no necessity for giving the above quoted instruction in any negligence case and the giving of such an instruction cannot possibly aid the jury in determining whether or not the defendant was guilty of negligence which proximately contributed to plaintiff’s injury or that plaintiff was not guilty of contributory negligence. In the conventional negligence case, instructions are given defining negligence, proximate cause and burden of proof. The jury is then told that before the plaintiff can recover he must prove by a preponderance of the evidence that defendant was guilty of negligence which was the proximate cause of the accident, and if contributory negligence is pleaded as a defense, that the burden is on the defendant to prove that plaintiff was guilty of contributory negligence which contributed to his own injury in some degree. With these instructions in mind, the jury are in a position to return a verdict based upon the evidence. Since the jury has been told that plaintiff cannot recover damages from the defendant unless the latter was guilty of negligence which was the proximate cause of the accident and that plaintiff must have been free from negligence himself which proximately contributed to the accident, any additional instructions such as the one above quoted or the one on the subject of unavoidable accident condemned in the Butigan case, are mere surplusage and tend to mislead and confuse the jury. For this reason I would hold that the giving of either of such instructions is error.

The question of whether or not plaintiff has suffered prejudice as the result of the giving of either of the above mentioned instructions is sometimes a close one. In the ordinary ease where there is a sharp conflict in the evidence but where there is sufficient competent evidence to establish negligence on the part of the defendant and evidence of contributory negligence on the part of the plaintiff is either weak or nonexistent, I would hold the giving of either of the above mentioned instructions prejudicial error justifying a reversal of the judgment in favor of the defendant if the instructions were given at his request. On the other hand, where the evidence of defendant’s negligence is weak and there is substantial evidence in support of the defense of contributory negligence, I would be disposed to hold the giving of the questioned instructions not necessarily prejudicial.

The foregoing reasoning leads me to the conclusion that in cases where plaintiff has made out a case under the doctrine of res ipsa loquitur and offers appropriate instructions applying this doctrine, it would be prejudicial error for the court "to give either of the above mentioned questionable instructions at the request of defendant. I am likewise of the opinion that where the evidence makes out a ease under the doctrine of res ipsa loquitur as a matter of law, such as Jensen v. Minard, 44 Cal.2d 325 [287 P.2d 7] ; Danner v. Atkins, 47 Cal.2d 327 [303 P.2d 724] ; and Barrera v. De La Torre, 48 Cal.2d 166 [308 P.2d 724], it would be prejudicial error to give either of the above questioned instructions even in the absence of the offer by plaintiff of res ipsa loquitur instructions on his behalf.

In the case at bar no instructions applying the doctrine of res ipsa loquitur were offered by plaintiff and in my opinion the record does not disclose a case giving rise to this doctrine as a matter of law. In the absence of proposed instructions by plaintiff applying the doctrine of res ipsa loquitur as to one or both of the defendants, it is obvious that no error can be predicated upon the failure of the court to submit the ease to the jury under this doctrine, and we are not faced with the question as to whether or not it would have been error for the trial judge to refuse to instruct the jury under this doctrine if appropriate instructions applying this doctrine had been presented by plaintiff. I have heretofore given expression to the view that the doctrine of res ipsa loquitur may be applicable to many cases involving collisions between two or more automobiles or an accident in which only one automobile is involved (see dissenting opinions in Danner v. Atkins, 47 Cal.2d 327, 334 [303 P.2d 724] ; Barrera v. De La Torre, 48 Cal.2d 166, 173 [308 P.2d 724]), and I am in full accord with the views expressed by this court in Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R. 1092], and with the statement of Dean Prosser in the second edition of his work on torts, on pages 207 to 209, and the discussion in The Law of Torts by Harper and James (1956), pages 1090 to 1092, and I am unwilling to join with the majority in restricting the application of the doctrine of res ipsa loquitur to the very limited field in which it has been applied by the majority of this court in recent decisions (Danner v. Atkins, supra, 47 Cal.2d 327; Barrera v. De La Torre, supra, 48 Cal.2d 166).

It is perfectly obvious to me that in a case where the doctrine of res ipsa loquitur is applicable, and instructions applying this doctrine are given, the giving of either of the above questionable instructions creates a patent conflict, as the court in one breath tells the jury that the mere happening of the accident gives rise to an inference of negligence, and in the next, that it does not. I can see no merit whatsoever in the specious reasoning of Mr. Justice Schauer on this subject, as everyone familiar with the trial of a lawsuit knows that when instructions are given to a jury, sufficient evidence has been introduced to establish the fact that the accident was the result of the negligence of someone connected with the case, or the issue of negligence would not be submitted to the jury. If the case were tried in a vacuum and there was no evidence as to how the accident happened or from which inferences or presumptions could be drawn, the abstract reasoning of Mr. Justice Schauer might come into play, but it can have no place in the trial forum where there is direct or indirect evidence as to how the accident happened.

For the reason above stated, that it does not appear as a matter of law that the doctrine of res ipsa loquitur is applicable to the facts of this ease and where no instruction applying this doctrine was offered by plaintiff, I am constrained to agree with the majority that the giving of the above quoted instruction, while error, was not prejudicial to the plaintiff.