Price v. McDonald

SHINN, J.,

pro

tem.

In this action by his guardian

ad litem,

plaintiff recovered judgment against defendants P. A. McDonald and Mrs. Everett Mulconery in the sum of $2,000

[79]

for injuries received when an automobile coasted out of a driveway in the nighttime, crossed a public street, and crashed through the wall of a dwelling house where plaintiff was sleeping.

The complaint alléged negligence on the part of the defendants in that they negligently parked said automobile in their yard “and so negligently maintained said automobile and cared for same and so negligently controlled same” that the automobile backed from the yard, struck the house where plaintiff was sleeping and caused his injuries.

On this appeal, appellants seek a reversal because the court applied to the facts of the case the doctrine of

res ipsa loquitur

and instructed the jury thereon, and they contend the doctrine does not apply. They ■ invoke the rule that where specific acts of negligence are charged plaintiff must rely thereon, and not upon the

res ipsa loquitur

doctrine. At the close of plaintiff’s case, the court allowed an amendment of the complaint by striking out the allegation of negligence in the parking of the car. No evidence was offered by plaintiff as to the manner in which the car was parked. The amendment was properly allowed although we think it was unnecessary. The allegation of negligence in maintaining, caring for and controlling the automobile charged negligence in general terms and the complaint was unobjectionable as the basis for the application of the doctrine of

res ipsa loquitur. (Chauvin

v.

Krupin,

4 Cal. App. (2d) 322 [40 Pac. (2d) 904].)