Roddiscraft, Inc. v. Skelton Logging Co.

This is an appeal by the defendant from an order of the trial court granting plaintiffs’ motion for a new trial, following a jury verdict for the defendant, on the ground that the court had erred in refusing plaintiffs’ requested instructions on res ipsa loquitur. The requested instructions were substantially in the form of BAJI No. 206 (revised) and BAJI No. 206-A (revised).

Question Presented

The sole question presented on appeal is whether the trial court committed prejudicial error in refusing to instruct on the doctrine of res ipsa loquitur.

The Record

The plaintiffs are: Roddiscraft, Inc., a corporation (hereinafter sometimes called Roddiscraft), Timber Products Company, a corporation (hereinafter sometimes called Products Company), and Ted and Bill Boak, doing business as Ted and Bill Boak Logging Company, a copartnership (hereinafter sometimes called Boak). The defendant is Skelton Logging Company, a corporation (hereinafter sometimes called Skelton). Roddiscraft and Products Company are owners of timber land. Boak is a contract logger. Skelton is both a logger and an owner of timber land.

On August 16, 1958, a forest fire occurred in the Bald Hills area of Humboldt County in California. The said fire destroyed timber on the lands of Roddiscraft and Products Company, and equipment and other personal property belonging to Boak and located on the Roddiscraft land. The damages allegedly caused by said fire are the subject of the present action brought by these plaintiffs against Skelton upon allegations in the complaint which charge the latter with negligently and unlawfully starting the fire and negligently and unlawfully permitting it to escape from its land.

The Skelton land is adjacent and to the east of the Roddiseraft property. On the day of the fire Boak was engaged in logging on the Roddiscraft property, and Skelton was conducting logging operations on its property. Skelton’s operations consisted of logging timbers from the easterly side of a

Expert testimony was presented by the plaintiffs to the effect that forest fires may be caused by lightning, power lines, discarded matches and cigarettes, children with matches, arsonists, powder used for blowing checker holes, railroad engines, internal combustion engines without spark arresters, loggers’ “donkeys” and chain saws. One of such experts, George Ryder, testified that in his opinion, based upon a hypothetical question, the fire was caused by the tractor which did not have a spark arrester and which on the day of the fire was observed throwing sparks from its exhaust stack. This witness testified, however, that in his opinion sparks from the exhaust of such a tractor are emitted at a speed of approximately 80 miles per hour and could carry from 25 to

In determining whether or not the evidence supports the theory of the requested instructions we must view the evidence in the light most favorable to the party offering the instructions. (Edgett v. Fairchild, 153 Cal.App.2d 734 , 738 [ 314 P.2d 973 ] ; Sills v. Los Angeles Transit Lines, 40 Cal.2d 630 , 633 [ 255 P.2d 795 ].) With this requirement as a guide we now turn to the ascertainment of whether the evidence so viewed establishes the elements which would entitle the plaintiffs to the requested instructions on the doctrine of res ipsa loquitur.

The First Condition

The first condition to be met is the requirement that the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence. This require

The evidence need not show that this is a type of accident which must occur because of someone’s negligence. The requirement is that in the light of past experience the accident probably was the result of negligence by someone. (Di Mare v. Cresci, supra, 58 Cal.2d 292 , 298-299; Faulk v. Soberanes, 56 Cal.2d 466 , 470 [ 14 Cal.Rptr. 545 , 363 P.2d 593 ].) As enunciated in the Zentz case, the theory of probability of negligence is both a reason for the doctrine and a basic condition for its application. (39 Cal.2d at p. 442.) It thus becomes the plaintiff’s task to present sufficient evidence from which the jury may draw the conclusion that negligence is the most likely explanation of the accident. The inference of negligence which the jury may draw need not be a conclusive or compelling one. Where reasonable men may differ as to the balance of probabilities, the question whether an inference of negligence is to be drawn is one for the jury. (Seneris v. Haas, supra, 45 Cal.2d 811 , 827.)

In the instant case there was sufficient evidence from which, on the basis of past experience, supplied both by common knowledge and the testimony of experts, the jury could draw the inference that someone was negligent. Aceordinly, the first requisite condition has been met.

The Second Condition

It is not enough, however, for the plaintiff to show that in the light of past experience the accident was probably the negligence of someone unidentified, but he must also show that the defendant is probably the one responsible. (Di Mare v. Cresci, supra, 58 Cal.2d 292 , 298-299; Borenkraut v. Whitten, supra, 56 Cal.2d 538 , 547.) “This he may do,” says Prosser, op. cit. supra, “by a second inference, based on a showing of some specific cause for the accident within the defendant’s

In dealing with the question whether it is more probable than not that the defendant’s negligence caused the accident, the courts have evolved the second requisite condition, i.e., that the defendant must have management or control of the agency or instrumentality which causes the accident. The purpose of this requirement is to eliminate the possibility that the accident was caused by someone other than the defendant. Accordingly, its use is merely to aid the courts in making the determination that it is more probable than not that the accident was the result of the defendant’s negligence. (Zentz v. Coca Cola Bottling Co., supra, p. 443; Borenkraut v. Whitten, supra, pp. 547-548.)

The words “agency or instrumentality” refer to the

Do we have an instrumentality under the defendant’s control 'in the instant case ? The accident, here, was the fire; the “thing,” whatever it was, that caused the fire is the instrumentality. (See Hubbert v. Aztec Brewing Co., supra, p. 687.) The only instrumentality shown by the plaintiffs to which the fire could with reasonable probability be attributed was the tractor which was seen to emit sparks. This was apparently the theory upon which the plaintiffs based their case. There is no question that such tractor was under the defendant’s control. We are not, therefore, concerned with the control element in this case.

We now turn to the probabilities. The forest fire was either caused by an act of God, the negligence of a third person, the negligence of the defendant, or the fault of the plaintiffs. The last consideration is the subject of the third condition and we shall discuss it under that heading. The only act of God established as a possible cause of the fire is lightning. There was no evidence presented as to whether there had been any lightning storms at or about the time of the fire. The only evidence adduced as to the condition of the weather was as follows: that a light wind was blowing; that there was a breeze which came in gusts; that it would be

Against the foregoing probabilities, we have the probability of the defendant’s negligence. The plaintiffs urge the tractor instrumentality as a probable cause and suggest, as an alternative, that because it may be inferred that the only men present in the area of the fire were Skelton’s employees, a probable cause might also be the throwing of a lighted match or cigarette by such employees. There is nothing in the record, however, to show that any such match or cigarette was thrown. As said by Prosser, op. cit. supra, "Even though there is, beyond all possible doubt, negligence in the air, it is still necessary to bring it home to the defendant.” (P. 196.) The only showing of some specific cause for the accident within Skelton’s responsibility is the tractor, which was observed to emit sparks on the day of the fire. There was not only ample evidence that the fire originated on Skelton’s land, but also evidence that the two tractors were the only machinery being used in close proximity to where the fire started. In particular, we have the tractor which emitted sparks. While it is true that there was no testimony that the tractor was seen to emit sparks prior to the fire, there was evidence that it did shortly after the fire started and while this par

particular tractor was not equipped with a spark arrester. A violation of the statute requiring such arrester (Pub. Resources Code, § 4167, ante) would in itself raise a presumption of negligence. Additionally, we have the testimony of the expert witness, Ryder, that any internal combustion engine will shoot sparks together with his opinion that the instant fire was caused by sparks from the tractor in question. Ryder testified that in his opinion such sparks could travel as much as 30 feet, but that this was not a maximum, the distance being dependent upon the topography of the land and the size of the particles. This testimony, when coupled with that of Skelton’s employees that the fire started from 40 to 50 feet from the main road, as well as other testimony which placed the fire in close proximity to the said road, presented a factual issue, as did the testimony that sparks from a tractor could not start such a fire, irrespective of the existence or nonexistence of a spark arrester. The fact that there may be a conflict in the testimony as to the exact origin of the fire, or as between the experts as to the probable cause of the fire, does not prevent the jury from indulging in the inferences within its province. As stated in Tallerico v. Labor Temple Assn., 181 Cal.App.2d 15 [ 4 Cal.Rptr. 880 ]: “A conflict in the evidence addressed to the existence of any of the three factual conditions necessary to justify application of res ipsa loquitur does not preclude its application.” (P. 19.) We cannot say, therefore, that reasonable men could not, under the evidence in this case, conclude that the more probable explanation of the fire was that it was caused by sparks from the tractor. Such a conclusion would supply the inference required by the second condition, unless, of course, the accident was due to any voluntary action or contribution on the part of the plaintiffs.

The inference of negligence does not point to the defendant until the plaintiff himself has been eliminated as a cause. Accordingly, the plaintiff must account for his own conduct before res ipsa loquitur will apply. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 , 458 [ 150 P.2d 436 ].)

He will not, however, be deprived of the doctrine even though he has participated in the events leading to the accident if the evidence excludes his own conduct as a responsible cause. (Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436 , 444-445; Baker v. B. F. Goodrich Co., supra, 115 Cal. App.2d 221 , 229.) “How and to what extent plaintiff must account for his own conduct,’’ says Balter, “is explained by . . . [Prosser], as follows: . . . ‘ [T]he plaintiff need only tell enough of what he did and how the accident happened to permit the conclusion that the fault was not his. Again he has the burden of proof by a mere preponderance of the evidence, and even though the question of his own contribution is left in doubt, res ipsa loquitur may still be applied under proper instructions to the jury.’ ” (P. 229.) Therefore, unless it can be said that the evidence here, as a matter of law, does not exclude the conduct of the plaintiffs as a responsible cause they are not deprived of the benefit of the doctrine.

In the present case the plaintiffs purported to show that the fire was caused by sparks from the defendant’s tractor and that none of the plaintiffs were present or active in the area excepting the plaintiff Boak and its employees. As to Boak, there was evidence to show that its activities and that of its employees consisted in the operation of a loading donkey and yarder at its landing' some 742 feet away from where the fire started. The jury could thus conclude that the plaintiffs Roddiscraft and Products Company did not contribute to the fire and that plaintiff Boak’s activities were far enough from where the fire started, so as to eliminate each of the plaintiffs as a probable cause. Even if we assume that the jury could infer that the fire started on the plaintiffs’ property and that Boak’s loading donkey might have emitted sparks (although there was no such evidence), we would, at best, have a factual question and a balancing of probabilities, the determination of which was for the jury. A finding in plaintiffs’ favor on this question would satisfy the requirement of the third condition.

The Specific Acts of Negligence

It is urged by the defendant that even if the court erred in

In the present ease, therefore, the plaintiffs were entitled to have the case go to the triers of fact with the inference of negligence supplied by res ipsa, plus other specific acts of negligence to be weighed against the defendant’s showing. (Leet v. Union Pac. R.R. Co., supra, p. 621.) The rule of res ipsa is a principle distinct from that of negligence per se resulting from a violation of statute. In the former an inference of negligence is raised; in the latter a presumption of negligence arises. Both rules may be applicable in a given ease. (See Alarid v. Vanier, 50 Cal.2d 617 [ 327 P.2d 897 ] ; and Burger v. Burger, supra, 136 Cal.App.2d 360 .)

The violation of statute gives rise to a presumption of negligence as a matter of law on proof of such violation, liability therefor being predicated, of course, upon such violation being a proximate cause of the injury. (Alarid v. Vanier, supra; Tossman v. Newman, 37 Cal.2d 522 [ 233 P.2d 1 ] ; Smith v. Sugich Co., 179 Cal.App.2d 299 [ 3 Cal.Rptr. 718 ].)

This presumption of negligence is rebuttable and may be overcome by evidence of justification or excuse. (Alarid v. Vanier, supra, p. 621.) In order to overcome this presumption the person who has violated the statute has the burden of showing that he did what might reasonably be expected of a person under ordinary prudence, acting under similar circumstances, who desired to comply with the law. (Alarid v. Vanier, supra, p. 624.) Under the res ipsa rule, however, once the inference of negligence arises, the defendant must produce evidence sufficient to meet the inference of negligence by offsetting or balancing it. (Hardin v. San Jose City Lines, Inc., supra, 41 Cal.2d 432 , 437.) This he does upon a showing either (1) of a satisfactory explanation of the accident, that is, an affirmative

In the present ease the defendant offered no evidence of justification or excuse for the violation of statute. Accordingly, the trial court was justified in not instructing "on this phase of the rule. (Cavagnaro v. City of Napa, 86 Cal.App.2d 517 [ 195 P.2d 25 ].) The jury was thus left with the violation of statute and the question of proximate cause. Such violation being uncontradicted, the only issue for the jury’s determination was whether such violation was the proximate cause of the fire. Under the state of the evidence and the instructions of the court the jury apparently concluded that the failure to equip the tractor with a spark arrester was not a proximate cause of the fire. The plaintiffs were, however, still entitled to have the inference of negligence supplied by res ipsa loquitur drawn in support of such specific proof. (Freitas v. Peerless Stages, Inc., supra, 108 Cal.App.2d 749 , 756; Leet v. Union Pac. R.R. Co., supra, 25 Cal.2d 605 , 621; Prosser, op. cit. supra, p. 214.) Had the jury been permitted to do so they might have reached a different conclusion. The jury was, in a measure, restricted to the circumstance of the failure to provide a spark arrester. In the instant ease no contention can be made that such specific proof dispelled the inference as a matter of law because there are other facts and circumstances present which establish a foundation for the doctrine other than the absence of the spark arrester. In discussing the second condition of the doctrine, we pointed out such circumstances. We reiterate, in particular, the testimony that the tractor did, in fact emit sparks. Being entitled to the inference of negligence afforded them by the doctrine, the plaintiffs were also entitled to the benefit inuring to them of placing the burden upon the defendant to go forward with the evidence, i.e., to produce evidence sufficient to meet the inference by offsetting or balancing it. (See Hardin v. San Jose City Lines, Inc., supra, 41 Cal.2d 432 , 437.)

We conclude, therefore, that under the principles above discussed, the evidence of the plaintiffs in this ease was

Accordingly, we affirm the order of the trial court.

Bray, P. J., and Sullivan, J., concurred.