Morris v. Morris

The plaintiff was injured while riding in an automobile operated by defendant Hattie M. Morris, and Robinson A. Morris, who was the husband of the latter, was joined as a defendant in the action.

The complaint contained general allegations of negligence in the operation of the automobile with averments as to the character of the injuries suffered and the damage sustained, these allegations, with the exception of the fact that plaintiff was injured, being denied by the answer.

The action was tried by a jury, which returned a verdict for defendants, and from the judgment entered therein the plaintiff appealed. It is urged as grounds for reversal that certain of the instructions to the jury were prejudicially erroneous.

The plaintiff and Hattie M. Morris, who will hereinafter be referred to as the defendant, were, so far as appears, the only persons who witnessed the accident. The plaintiff was riding in the rear seat of the automobile, which was being driven in a westerly direction on San Marino Street in the city of Los Angeles. It was the intention of the parties

It was testified by the defendant that the automobile entered the intersection at a speed of approximately ten miles per hour; that three other automobiles were then approaching from the south, the nearest being distant about sixty-five feet; that, fearing a collision with the latter, she became excited, pressed her foot upon the accelerator, and that as the result of the increase in speed she was unable after passing the center of the intersection to turn the automobile sufficiently to the left to avoid striking the pole mentioned.

.Contributory negligence on the part of the plaintiff was not pleaded by the defendants, and it was stipulated as to the extent of plaintiff’s injuries, and also that the width of Western Avenue between the curbs was fifty-six feet and of San Marino Street forty feet.

The first instruction of which appellant complains was as follows: “If you find that the accident in this case is as consistent with the neglect of the duty on the part of the plaintiff, Ida B. Morris, as it is with the neglect of the duty on the part of the defendant, then the plaintiff cannot recover in this action in damages, and your verdict must be for the defendant.”

It was incumbent upon the plaintiff to show by a preponderance of evidence that the damage alleged was caused by the neglect of the defendant, and as held in the following eases the instruction was properly given. (Sheldon v. James, 175 Cal. 474 -480 [ 2 A. L. R. 1493 , 166 Pac. 8 ]; Straten v. Spencer, 52 Cal. App. 98 -110 [ 197 Pac. 540 ].)

The jury was further instructed as follows: “Any presumption which the law may raise or permit you to draw

The circumstances of the injury were such as to justify the application of the res ipsa loquitur doctrine (Bauhofer v. Crawford, 16 Cal. App. 676 [ 117 Pac. 931 ]; Mansfield v. Pickwick Stages, 68 Cal. App. 507 [ 229 Pac. 890 ] ; Leitert v. Pickwick Stages, 68 Cal. App. 504 [ 229 Pac. 889 ]); and it is apparent from the complaint and the testimony of the plaintiff that she relied thereon.

While negligence on the part of a defendant is not to be presumed from the mere happening of an accident, and the inference of negligence arising from the circumstances which bring the case within the doctrine does not change the burden of proof which remains upon the plaintiff (O’Connor v. Mennie, 169 Cal. 217 [ 146 Pac. 674 ]), this inference in the absence of evidence sufficient to meet the prima facie case thus made could not be disregarded by the jury. (Bush v. Barnett, 96 Cal. 202 [ 31 Pac. 2 ]; Housel v. Pacific Electric Ry. Co., 167 Cal. 245 [Ann. Cas. 19150, 665, 51 L. R A. (N. S.) 1105 , 139 Pac. 73 ].)

In the present case the defendant testified as to the cause of the accident, and although her testimony, with the

Although a witness is presumed to speak the truth (Code Civ. Proc., sec. 1847), and it is the general rule that the uncontradicted testimony of a witness to a particular fact may not be disregarded, nevertheless the jury is not bound to decide in conformity with the declaration of any number of witnesses which do not produce conviction in their minds against a less number or against a presumption or other evidence satisfying their minds (Code Civ. Proc., sec. 2061). Moreover, as held in Lauder v. Currier, 8 Cal. App. 28 [ 84 Pac. 217 ], the question whether the uncontradicted testimony of a witness was sufficient to overcome the inference of negligence arising from the nature of the accident was one for their determination.

That the explanation given by the defendant might appear to the jury to be reasonable would not justify an instruction which precluded them from considering whether an inference of negligence drawn from all the circumstances shown by the evidence would not be equally or more reasonable and of so finding if such was their conclusion.

Notwithstanding her explanation, the circumstances tended to show that the driver was inattentive in the operation of the car and to the conditions at the intersection, and the inference that she was negligent in this respect and that the injury was proximately caused thereby would have been fairly supported.

"We find no instruction in the record which can reasonably be said to have removed the misleading effect of the instrue

The judgment is reversed.

Tyler, P. J., and Knight, J., concurred.

A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 22, 1927.