Danner v. Atkins

CARTER, J.

I dissent.

The basis for the application of the doctrine of res ipsa loquitur is found in the everyday experience that certain kinds of accidents do not occur in the absence of negligent conduct by the person in control of the instrumentality causing the accident. A showing of the occurrence of such an accident, then, raises an inference that the one in control was negligent and it becomes incumbent upon him to satisfactorily explain the cause of the mishap in order to avoid liability (Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691 [268 P.2d 1041] ).

An examination of the facts in this case shows that they are particularly susceptible to the application of the res ipsa loquitur doctrine. The defendant driver, Atkins, left the truck, which weighed several tons, unattended while he went to a café. The uncontradicted testimony of the mechanic, not a party to the action, shows that the condition of the truck was not changed after Atkins left. A few minutes after Atkins left the scene, the truck crashed through the side of the café which was some 250 feet downgrade from where the truck was parked. Clearly, parked vehicles do not roll downhill unless the operator was negligent, either in parking the vehicle or in maintaining its braking equipment in proper mechanical order. (Price v. McDonald, 7 Cal.App.2d 77 [45 P.2d 425].) The first question that arises, then, is whether the trier of fact can refuse to draw the inference that Atkins was negligent. In discussing this problem in Burr v. Sherwin Williams Co., supra, this court said at page 689 that “In some types of situations, because of the nature of the particular accident, an inference of negligence upon the part of the defendant may be so strong that no reasonable man could fail to accept it in the absence of explanatory evidence. ’ ’ Put another way, “. . . if the inference is sufficiently strong to persuade the court, and the obvious conclusion is that the defendant has been negligent, no perverse jury should be permitted to refuse to draw it. If the thing speaks for itself, why not accept what it says?” (Prosser, Res Ipsa Loquitur in California [1949], 37 Cal.L.Rev. 183, 220.) Surely, then, when a large truck is left unattended, and for no known reason, rolls down a grade, “the obvious conclusion is that the defendant has been negligent” and this inference is “so strong that no reasonable man could fail to accept it.”

The effect of this inference is also examined in Burr v. Sherwin Williams Co., supra, at page 690, where Mr. Chief Justice Gibson, speaking for a unanimous court, said that “A few decisions have criticized instructions to the effect that res ipsa loquitur imposes a mandatory burden upon the defendant to rebut the inference of negligence and have apparently proceeded on the theory that the doctrine creates an inference which is enough to avoid a nonsuit but which the trier of fact may accept or reject as it sees fit, even though the defendant offers no evidence. [Citations.] This view, which is inconsistent with most of the California decisions, is very difficult to apply, and there are substantial reasons why we should hold that in every type of res ipsa loquitur case the defendant should have the burden of meeting the inference of negligence. . . .

“It is our conclusion that in all res ipsa loquitur situations the defendant must present evidence sufficient to meet or balance the inference of negligence, and that the jurors should be instructed that, if the defendant fails to do so, they should find for the plaintiff.” (Emphasis added.)

In regard to what a defendant must show in order to meet the burden imposed by the inference of negligence, the court in Talbert v. Ostergaard, 129 Cal.App.2d 222, 228 [276 P.2d 880], said: “Procedurally, it is incumbent on defendant to rebut the inference by a showing ‘ “either (1) of a satisfactory explanation of the accident, that is, an affirmative showing of a definite cause for the accident, in which cause no element of negligence on the part of the defendant inheres, or (2) of such care in all possible respects as necessarily to lead to the conclusion that the accident could not have happened from want of care, but must have been due to some unpreventable cause, although the exact cause is unknown. In the latter case, inasmuch as the process of reasoning is one of exclusion, the care shown must be satisfactory in the sense that it covers all causes which due care on the part of the defendant might have prevented.” ’ (Dierman v. Providence Hospital, 31 Cal.2d 290, 295 [188 P.2d 12].) In short, the ‘explanation which the defendant is required to make is an explanation of his conduct and, to he complete, it must be as broad as the inference. ’ (Hinds v. Wheadon, 67 Cal.App.2d 456, 464 [154 P.2d 720].) The question of the sufficiency of a defendant’s explanation of the accident or the sufficiency of his evidence of due care is ordinarily one of fact for the jury. [Citations.] But if, in explaining his conduct, the defendant fails to produce substantial evidence of the use of due care, as where he fails adequately to disclose the nature of an inspection he was required to make, his defense may be held insufficient as a matter of law. [Citations.]”

Applying these standards here, it seems abundantly clear that defendant has not offered evidence sufficient to overcome the inference of negligence. Obviously, there was no explanation of the cause of the accident. It appears equally obvious that there is insufficient evidence of “due care in all possible respects.” Defendant’s only explanation is that he left the gears engaged and the brake locked. This does not amount to “an explanation as broad as the inference.” Except for th mechanic’s testimony that one of the gear boxes was in gear (no braking power would be afforded unless both gears were engaged), there was no evidence as to the condition of the gears and brakes after the accident. Such evidence would certainly be of assistance in determining the cause of and responsibility for the accident, and, presumably, such evidence was within defendant’s power to produce as he drove the truck after the accident. Yet, no such evidence was offered. Under similar circumstances, it was said in Talbert v. Ostergaard, supra, at page 229, that “The failure of a defendant to produce evidence explaining a circumstance of importance in the case, if such evidence is available, justifies an inference that such evidence, if given, would redound to his prejudice. [Citations.] This principle applies with particular force where, as here, the circumstance to be explained arises in relation to defendant’s burden of meeting an inference of negligence.” The only conclusion, then, that can be drawn is that defendant has not done all within his power to explain the accident and, therefore, it should be held that he has failed to overcome the inference of negligence. For these reasons, I would reverse the judgment.