Jorgensen v. East Bay Transit Co.

California Court of Appeal Jul 22, 1941 No. Civ. 11535Published

Before: Sturtevant, Nourse, Spence

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Holding. The court held that the trial court did not err in refusing to give requested instructions regarding the doctrine of res ipsa loquitur because the evidence regarding the cause of the accident was direct and undisputed, nor did it err in refusing to highlight specific evidence like the death certificate or in refusing redundant instructions.

Issues

Whether the trial court erred in refusing to instruct the jury on the doctrine of res ipsa loquitur when direct evidence of the cause of the accident was presented.
Whether the trial court erred in refusing to give instructions that would have specifically highlighted the evidentiary weight of the death certificate.
Whether the trial court erred in refusing to give instructions that were redundant to other instructions already provided to the jury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The sole fact to be tried was whether there was an unusual or violent movement or jerk of the bus.”

“Hence the presumption or inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has full knowledge and testifies as to the specific act of negligence”

“The plaintiffs were not entitled to have the trial court “stress a specific part of the evidence.””

[191]

STURTEVANT, J.

While riding in one of the passenger busses of the defendant, Frederick C. Jorgensen fell or was thrown against the back of a seat. He suffered an injury at the time. About three months later he died. Nannie S. Jorgensen, his widow, and four adult children, commenced this action to recover damages alleging that the injury exacerbated a preexisting ailment and caused the death of the decedent. The jury returned a verdict in favor of the defendant and from the judgment entered thereon the plaintiffs have appealed. They contend that the trial court committed prejudicial errors in refusing to give several instructions which the plaintiffs asked.

The transcript sets forth the charge of the court and the instructions which were given by the court acting upon the request of the plaintiffs or the request of the defendant. The jury was instructed with most meticulous care on every point of law except as will hereinafter be noted. Before we proceed it should also be mentioned that at the end of the plaintiffs’ case the defendant immediately proceeded to take up the proof; and, if we understand the record correctly, it produced every one of its employees who might have been driving the bus in which the alleged injury was caused.

In defendant’s instruction No. 2, which was given by the trial court, the difference between jerking motions caused by ordinary movements and such motions caused by negligent operation of cars was clearly delineated. Plaintiffs’ instruction No. 1, which was not given, was as follows: “In order to make out a

prima facie

case against the defendant East Bay Transit Company, a corporation, in this action, it is sufficient for the plaintiffs to show that the decedent, Frederick C. Jorgensen, received an injury that was one of the proximate causes of his death, and that such injury, if any, was sustained by the decedent while he was a passenger upon one of the automobile coaches of, and being operated by the defendant on Sacramento Street, in the City of Berkeley, and that said injury, if any, was sustained by decedent by reason of his being thrown against a seat in the interior of said automobile coach by the sudden starting of said coach by said defendant, East Bay Transit Company, a corporation, after said coach had been stopped for the purpose of enabling the decedent to board it. The law does not impose upon the

Jorgensen v. East Bay Transit Co.

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STURTEVANT, J.

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