Shaw v. Pacific Greyhound Lines , 50 Cal. 2d 153 ( 1958 )

CARTER, J.

I concur in the judgment of affirmance. The instruction that “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,” was clearly erroneous (see my concurring opinion, Phillips v. Noble, post p. 163 [323 P.2d 385]). Since the trial court granted a new trial we are not here concerned with the question of prejudice. (Bolton v. Martin, 126 Cal.App.2d 178 [271 P.2d 991]; Sloboden v. Time Oil Co., 131 Cal.App.2d 557 [281 P.2d 85]; Balthrop v. Atchison, T. & S. F. Ry. Co., 142 Cal.App.2d 823 [299 P.2d 341].)

In my opinion it was the obvious duty of the trial judge to make any corrections necessary in the proposed instruction on res ipsa loquitur and to give it to the jury. Because of the error committed in giving the instruction above quoted and in refusing to give an instruction on res ipsa loquitur, the order granting a new trial must be affirmed.