Bellows v. City & County of San Francisco

California Court of Appeal Aug 14, 1951 No. Civ. 14590Published

Before: Goodell

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Holding. The trial court committed reversible error by giving an instruction that improperly shifted the burden of proof to the plaintiff to affirmatively establish the absence of contributory negligence. Because this erroneous instruction directly contradicted other general instructions, it could not be cured and likely prejudiced the jury's verdict.

Issues

Whether an instruction requiring a plaintiff to prove the absence of contributory negligence by a preponderance of the evidence constitutes reversible error.
Whether an erroneous instruction shifting the burden of proof is cured by other general instructions that correctly state the law.

Disposition. reversed

Quotations verified verbatim against the opinion

“The court thus . . . shifted from the defendant the burden of proving plaintiff’s contributory negligence, and imposed upon plaintiff the burden of proving that he was not guilty thereof. This is not the law, and the giving of such instruction to the jury was erroneous.”

“The instruction thus given was manifestly erroneous because, in effect, it instructed the jury that the plaintiff could not recover unless he affirmatively established that he was not guilty of contributory negligence.”

“If, however, an essential principle of law is stated to the jury materially incorrect, this prejudicial error will not ordinarily be cured by a correct declaration of the same principle in another instruction.”

[58]

GOODELL, J.

Plaintiff sued for personal injuries claimed to have been sustained while she was a passenger on a streetcar of the municipal railway. The jury returned a verdict for defendant, and after the denial of a new trial plaintiff appealed from the judgment.

On March 4, 1947, plaintiff, then aged 69, boarded a northbound Bryant Street car at the southeast corner of 20th and Bryant Streets in San Francisco. At that intersection there is an offset or jog in Bryant Street, and to sidle around it the tracks curved toward the west in what the motorman called a “snake turn” and then straightened out again and resumed a northerly course. The curve began about 90 feet southerly of 20th Street (which is 34 feet wide) and ended about 70 feet northerly thereof. It was while the car was traveling on this piece of track, and close to the point where it straightened out to the north, that the accident happened.

Plaintiff was standing at the time. The conductor testified that traveling over that curved track was dangerous to standing passengers if they were not holding onto something, whether the car was going slow or fast, and that if it went too fast on the curve there would be a lurch. Plaintiff testified that there was a lurch which threw her against the side of the car.

The city pleaded contributory negligence, and appellant’s ' sole contention is that the court erred in one of its instructions on that subject.

The rule is that negligence on the part of a plaintiff is a matter of defense to be proved affirmatively by a defendant unless it can be inferred from the evidence given in the plaintiff’s ease

(Blanton

v. Curry, 20 Cal.2d 793, 804 [129 P.2d 1]; 19 Cal.Jur. § 104, p. 681;

id.

§ 119, pp. 697-699;

id.

§ 152, pp. 755-757.)

Defendants proposed, and the court gave, the following instruction: “Before you are authorized to find a verdict against defendant ... it must appear by a preponderance of the evidence that the employees of defendant were guilty of the negligence charged in this complaint, and that such negligence proximately caused or proximately contributed to the injuries, if any, sustained by plaintiff,

Bellows v. City & County of San Francisco

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GOODELL, J.

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