Guerrero v. Brown's Lumber Co.

This is the second appeal in this personal injury action. The first appeal was by the plaintiff from a judgment entered upon a verdict in favor of the defendants. That judgment was reversed. As one of the grounds for reversal this court held that the trial court erred in refusing to give an instruction requested by the plaintiff on the doctrine of res ipsa loquitur, which left the jury entirely free to determine whether the necessary elements of the doctrine were present. (Guerrero v. Westgate Lumber Co., 164 Cal.App.2d 612 [ 331 P.2d 107 ].)

The present appeal is by the defendants from a judgment on a verdict awarding plaintiff damages at the conclusion of the second trial.

The evidence produced at the second trial is for the most part the same as that adduced at the first. However, it is different in some material respects as will be pointed out later in this opinion.

At the second trial the court, at plaintiff’s request, instructed the jury on the doctrine of res ipsa loquitur as follows:

“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, Forrest Roy Stillwell. 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.

“When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defendant’s negligence. If the evidence tending to prove that the accident was caused by a failure of the defendant to exercise the care required of him has greater weight than the evidence

to the contrary, you will find in favor of the plaintiff on that issue.

“In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, that is a definite cause for the accident, in which there is not negligence on the part of the defendant, Forrest Boy Stillwell, or (2) such care on the part of that defendant that leads to the conclusion that the accident did not happen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.”

This instruction is an exact copy of BAJI Number 206, Bevised, found in California Jury Instructions, Civil. No instruction was requested or given informing the jury as to the conditions to be met before the doctrine may be applied.

The principal contention urged on this appeal is that the trial court took from the jury the question as to whether the essential elements upon which the applicability of the doctrine is founded had been proved by the plaintiff. We have concluded that there is merit in this contention. The instruction given should have been preceded by the giving of BAJI Number 206-A, Bevised, California Jury Instructions, Civil, which reads as follows:

“One of the questions for you to decide in this case is whether the accident [injury] involved occurred under the following circumstances:

“First, that it is the kind of accident [injury] which ordinarily does not occur in the absence of someone’s negligence;

“Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant [originally, and which was not mishandled or otherwise changed after defendant relinquished control]; and

“Third, that the accident [injury] was not due to any voluntary action or contribution on the part of the plaintiff.

“If, and only in the event that you should find all of these conditions to exist, you are instructed as follows.”

The elements set forth in BAJI Number 206-A are those stated in Ybarra v. Spangard, 25 Cal.2d 486 , 489-490 [ 154 P.2d 687 , 162 A.L.R. 1258 ],

The evidence at the first trial did not show that Guerrero had pulled upon or moved the chain over the load, or that any

We find no merit in respondents’ contention that the “law of the case” rule compelled the trial court to direct the application of res ipsa loquitur. The question of law decided on the former appeal was that the evidence in favor of plaintiff was such that “the balance of probabilities suggested negligence on the part of the respondent who was responsible for the loading of the truck,” and hence the requested instruction on res ipsa loquitur which did not compel the jury to accept plaintiff’s evidence but left it entirely free to determine whether or not the necessary elements of the doctrine were present should have been given—not that the evidence required such a finding.

Since the judgment must be reversed because of the form in which the instruction on res ipsa loquitur was given, we deem it unnecessary to discuss other contentions.

The judgment is reversed.

Peek, P. J., and Schottky, J., concurred.

A petition for a rehearing was denied November 22, 1961, and respondent’s petition for a hearing by the Supreme Court was denied December 20, 1961. Peters, J., was of the opinion that the petition should be granted.