Robledo v. City of Los Angeles

In this action for damages for personal injuries resulting from a gunshot wound, judgment upon a verdict was in favor of the defendants. Plaintiff appeals from the judgment.

Appellant contends that the court erred in not giving his requested instructions on the doctrine of conditional res ipsa loquitur; and that certain comments made by defendants’ counsel in his argument to the jury constituted prejudicial misconduct.

On November 28, 1963 (Thanksgiving Day), about 6 p.m., while the plaintiff and his friends, Prospero Lucero and Miguel Vasquez, and several other persons were in a bar at the Alexandria Hotel in Los Angeles, Howard Green, a Negro, came there and began using and shouting profanity at everyone. When the bartender asked Green to leave the premises, Green struck the bartender in the face with his fist and then while those two persons were struggling and fighting, Vasquez and another man tried to help the bartender. While those persons were continuing to fight they went out the door and

The evidence was conflicting with reference to the position of plaintiff, in relation to the positions of the officer and Green, at the time the bullet struck plaintiff and immediately prior thereto.

Plaintiff testified in part as follows: He went into the bar with Lucero and Vasquez for the purpose of making a telephone call to find out whether he might bring Vasquez home to a Thanksgiving dinner. After telephoning, he returned to the place where Lucero and Vasquez had been sitting and he heard a commotion by the door where a colored man (Green) was fighting the bartender. Green and the bartender went out the door, followed by a group of persons, including Lucero and Vasquez. Lucero had a beer bottle in his hand. Plaintiff, after following Lucero out the door, saw “this trouble” among Green, the bartender, and Vasquez, on the sidewalk under the canvas canopy near the entrance to the hotel. A crowd gathered and plaintiff walked toward the crowd to see what was happening. He heard someone say: “Look out. That man has a knife.” Green was struggling with Vasquez and other persons in the crowd. Plaintiff was about 8 feet from Green. A police car pulled up to the curb in front of the entrance to the hotel, and a man in uniform got out of the car and fired a gun without giving any warning. Then plaintiff felt a sharp pain in his stomach, and he staggered and lost consciousness. He had no recollection as to how long he had been outside the bar because “things happened so fast” and were “so confused.” He was standing on the sidewalk about

Miguel Vasquez testified in part that he was in the bar when Green hit the bartender; he and another man tried to help the bartender; while he was struggling with Green outside the bar, he grabbed Green’s wrists and held him near a wall; at that time he heard a shot; and he did not hear the officer give any warning before the shot.

Prospero Lucero testified in part as follows: After Green hit the bartender (when they were in the bar), they went outside and continued fighting. He (witness), with a beer bottle in his hand, went outside under the canopy to see what was happening. A crowd gathered on the sidewalk. When he saw a knife in Green’s hand, he shouted to the bartender: “Look out. He has got a knife.” Green then “charged” him (witness), and he hit Green on the side of the neck with the beer bottle. About that time, the police car pulled to the curb, and one of the officers (Watts) jumped out with a gun in his hand. He (witness) shouted a warning that Green had a knife, and the officer fired a shot. He heard plaintiff scream: “I have been shot.” He (witness) had not seen plaintiff on the sidewalk before the shooting.

Joseph A. Johnston testified in part as follows: He was a patron in the bar when Green created the disturbance. After Green and two or three persons had gone out to the sidewalk, he (witness) went out another door of the bar. When he was outside he heard a shot. He did not see anyone running toward or pushing Green when he heard the shot. After the shooting, plaintiff was lying on the sidewalk about 20 feet from the corner of Fifth and Spring Streets, and Green was about 3 or 4 feet from that corner.

Two physicians testified that they had treated defendant for abdominal wounds. Plaintiff’s employer testified that he had employed plaintiff for more than two years and that plaintiff’s attendance at his employment was very good. (There was evidence that as a proximate result of the wounds, plaintiff incurred expenses as follows: hospital, exceeding $10,000; doctors, exceeding $3,000; incidental medical expenses, exceeding $1,000; and estimated loss of earnings, exceeding $12,000.)

Officer Watts testified in substance as follows: While he and Officer Hubbard were in a patrol car on Fifth Street he saw

Officer Hubbard testified in substance as follows: While he and Officer Watts were in the police car on Fifth Street, he saw a Negro man (Green) facing a crowd on the sidewalk. Green was making slashing movements with his hand in the direction of the crowd. One of the men in the crowd was using a newspaper rack as a shield. They (officers) stopped and he heard someone yell: “He has got a knife.” Officer Watts got out of the car and shouted: “Drop the knife.” He (witness) got out and went behind the car; Officer Watts again shouted: “Drop the knife.” Green then turned toward Officer Watts and made a “whirling motion” with his right hand in the direction of Officer Watts’ neck. Officer Watts and Green

Defendants’ witnesses, in addition to Officers Watts and Hubbard, were four other officers. Officer Ianone testified that when he had a conversation with plaintiff at the hospital on the day after the shooting, the plaintiff appeared to be in pain but was conscious. In that conversation the plaintiff said: That when Lucero arose from the table and went after Green, he (plaintiff) ran after Lucero to dissuade him from entering the fracas; he (plaintiff) saw a knife in Green’s hand and saw Green lunge toward Lucero; he also saw Green attempt to stab Officer Watts, and he (plaintiff) ran behind Green intending to grab Green’s right arm and disarm him; at that moment Officer Watts drew his revolver and fired; he (plaintiff) thought he was in a more advantageous position than the officer was in, and he believed he could take the knife away to prevent Green from stabbing the officer.

Officer Pearse testified that he had a conversation with Vasquez at the police building after the shooting; in that conversation, Vasquez made statements to the effect that when Green had a knife in his hand and was trying to cut the bartender, the “four of us” ran up to Green and struggled with him; and when the police arrived, plaintiff “ran after” Green “to get the knife from him.” Officer Pearse also testified that, after the conversation, Vasquez signed a document which included the substance of the conversation.

Officer Gonzalez testified that, after the shooting, he had a conversation with Vasquez (partly in Spanish and partly in English) at the police station, wherein Vasquez said: That on the sidewalk the colored man (Green) “pulled” a knife and was “moving around” with a knife in his hand; Vasquez grabbed Green’s hand which held the knife, and he was holding Green’s hand when the police car arrived and when the shot was fired; Vasquez did not know where plaintiff was when the shot was fired; and no persons were standing behind Green when the shot was fired.

Officer Neilson testified that, after the shooting, he had a conversation with Lucero at the police station, wherein Lucero said in substance that after Green had charged the bartender

Appellant contends that the court erred in not giving his requested instructions on the doctrine of conditional res ipsa loquitur; and that the comments made by defendant’s counsel in his argument to the jury constituted prejudicial misconduct.

“ The doctrine of res ipsa loquitur may be applicable, in an action for injuries caused by the- discharge of a firearm.” (53 Cal.Jur.2d, Weapons, § 34, p. 147. See Jensen v. Minard, 44 Cal.2d 325 , 329 [ 282 P.2d 7 ] ; 94 C.J.S., Weapons, §29, subd. d, p. 530; 46 A.L.R.2d 1212 ; 140 A.L.R. 410 .)

“Before the doctrine may be applied, however, the following requisite conditions must be met: (a) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (b) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (c) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Roddiscraft, Inc. v. Skelton Logging Co., 212 Cal.App.2d 784 , 793 [ 28 Cal.Rptr. 277 ] ; see Ybarra v. Spangard, 25 Cal.2d 486 , 489 [ 154 P.2d 687 ] ; Witkin, Cal. Evidence (2d ed. 1966) Burden of Proof and Presumptions, § 260, p. 222.)

“Where the evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur are present.” (Seneris v. Haas, 45 Cal.2d 811 , 826-827 [ 291 P.2d 915 , 53 A.L.R.2d 124 ] ; Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221 , 229 [ 252 P.2d 24 ]; see Roddiscraft, Inc. v. Skelton Logging Co., supra, p. 794.) “The conclusion that negligence is the most likely explanation of the accident, or injury, is not for the trial court to draw, or to refuse to draw so long as plaintiff has produced sufficient evidence to permit the jury to draw the inference of negligence even though the court itself would not draw that inference; the court must still leave the question to the jury where reasonable men may differ as to the balance of probabilities [citation]. The inference of negligence is not required "to be an exclusive or compelling une. . . . The existence of the conditions upon -which the operation of the doctrine is to be predicated, is a question of .fact and the right of the jury to find those facts must be carefully preserved [citations].” (Seneris v. Haas, supra, p. 827; see Hansen v. Matich Corp., 234 Cal.App.2d 129 , 133 . [44. Cal. Rptr. 149].)

In the present case, the accident was of a kind which ordinarily does not occur in the absence of someone’s negligence, and it was caused by an instrumentality within the exclusive control of the defendant officer. There was a conflict in the evidence as to whether the accident was due to contributive action by plaintiff. “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.” (Roddiscraft, Inc. v. Skelton Logging Co., supra, p. 795.) In the present ease the respondents assert that under the evidence “reasonable minds could not differ and therefore the determination as to the applicability of res ipsa loquitur became a question of law” and the court properly refused to give these instructions. (Citing Gray v. City & County of San Francisco, 202 Cal. App.2d 319 [ 20 Cal.Rptr. 894 ].)

According to the testimony of Officers Watts and

As above stated, a further contention of appellant is that certain comments made by defendants’ counsel in his argument to the jury constituted prejudicial misconduct. Those comments were as follows: “Now, there are two things, ladies and gentlemen. When we come here we say this: there are many ways this problem could be approached and truthfully a man was shot whom the officer really never intended to shoot. We could say, 'Well, Mr. Robledo is technically a member of a posse comitatus’—common law expression. As such, he becomes a policeman. Therefore, if Officer Watts had been injured, he’d be entitled to the same thing, Workmen’s Compensation, city to pay all his medical expenses and even the medical disability if it warranted it. Another procedure would be this new one: to file a complaint with the state where the man claims he is coming in defense of a policeman and he is injured but he didn’t choose either one of these.” That -argument assumed facts, regarding compensation, which were not in evidence and invited the jury to speculate as to unsupported inferences and legal theories that other remedies were available to plaintiff. (See Malkasian v. Irwin, 61 Cal.2d 738 , 747 [ 40 Cal.Rptr. 78 , 294 P.2d 822 ]; Ferrario v. Conyes, 19 Cal.App.2d 58 , 61 [ 64 P.2d 975 ].) The argument constituted prejudicial misconduct. Defendants (respondents) assert, however, that plaintiff’s counsel made no objection at the time defense counsel referred to the possibility of obtaining Workmen’s Compensation, and consequently plaintiff waived

Defendants assert further to the effect that the judge, by denying the motion for a new trial, found that such comments

The judgment is reversed.

Fourt, J., and Lillie, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied September 27, 1967.