Opinion
COAKLEY, J. Helen L. Gotcher was killed in a mid-air collision between a single-engine Piper Comanche and a single-engine Beechcraft Debonair. The jury returned a verdict for the defendant, and judgment was entered accordingly. Plaintiffs moved for a new trial upon numerous grounds. The motion was granted on the ground of “irregularity in the proceedings of the adverse party as shown in the record.” (Code Civ. Proc., [99]§ 657, subd. 1.) The reason given was that the defendant’s counsel “without prior consultation and/or approval of the court, read certain proposed and improper instructions to the jury, . . . and in an improper manner urged the jury to consider the correlative rights and duties of defendant and the pilot of the airplane in which decedent Helen Gotcher was riding, the cumulative and net effect of which was misconduct, having prejudicial effect upon the verdict. ...” The defendant appeals from this order. Plaintiffs cross-appeal from the judgment contending that the court erred in refusing to instruct on the doctrine of res ipsa loquitur as requested by the plaintiffs.
We first consider the alleged misconduct of defendant’s counsel on which the new trial was predicated.
In his argument to the jury, counsel read certain instructions which he advised the jurors he believed the court would give them. Counsel for the plaintiffs objected, and his objection was overruled. Defense counsel next discussed the doctrines of negligence and ordinary care in relation to the evidence, paraphrasing but not reading directly from the instructions which the court later gave. He then told the jurors that they would “also be instructed that the Federal Aviation Regulation Right-of-Way Rules, which were in effect at the time, read as follows. . . .” Counsel thereupon read a section of the General Operating and Flight Rules of the Federal Aviation Regulations dealing with right of way, and the converging and overtaking of planes in flight, following which he commenced to discuss the applicability of the regulation he had read to the evidence. At that point, the court declared the noon recess. Outside the presence of the jury there was a long colloquy initiated by the court concerning the court’s uncertainty as to particular instructions which had been proposed, and the propriety of defense counsel arguing to the jury the alleged negligence of the deceased pilot, since plaintiffs’ decedent could not be charged with such negligence. On the day preceding the commencement of oral argument, i.e., May 1, 1967, a conference on proposed instructions had been held between court and counsel. The record of that conference, if one was made, is not before us. However, from the reporter’s transcript of what transpired on May 2, it is apparent that when the conference on instructions was adjourned on May 1, counsel for both parties were under the impression that all questions concerning disputed instructions had been resolved by the court, and that an instruction or instructions on Federal Aviation Regulations on right of way and related subjects would be given, albeit that counsel for plaintiffs was opposed to the giving of the instruction later read to the jury by defense counsel. The next morning, May 2, 1967, a brief conference was held in chambers. The only subject of that conference was the use of the Present Value of the Dollar Table (BAJI [100196]7 Supp. p. 146). Counsel for plaintiffs then made his opening statement, followed by defense counsel, whose argument was interrupted by the noon recess and for further conference on instructions which was called on the court’s initiative following the recess. From the long colloquy that took place at that conference, it is clear (1) that the court was most uncertain as to what instructions, if any, should be given on Federal Aviation Regulations, (2) that both counsel believed that the court had decided on May 1 to give one or more instructions on said regulations, and (3) that respective counsel again urged the court to give the instructions which he offered and to reject those offered by opposing counsel with reference to Federal Aviation. Regulations.
Unfortunately, the court had failed to inform counsel at either of the conferences which immediately preceded oral argument (afternoon of May 1 and morning of May 2) that there was any uncertainty as to which of the disputed instructions the court proposed to give, refuse, or modify. Instead, the court directed counsel to proceed with oral argument. The confusion, therefore, was caused by the court rather than by counsel. Having conferred with counsel on proposed instructions, it was the duty of the court to delay the argument until its own uncertainty was resolved and counsel advised accordingly. That is the purpose of Code of Civil Procedure section 607a, which provides in part that: “Before the commencement of the argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given.”
It is axiomatic that it is the function of the court, not counsel, to instruct the jurors as to the law of the case. However, it is the right of counsel, and therefore not misconduct, to discuss the law of the case in his oral argument, provided, of course, that his statement of the law is correct and is not at variance with instructions on the law which the court has advised counsel it will give. (See Hodges v. Severns, 201 Cal.App.2d 99, 114 [20 Cal.Rptr. 129].)
Assuming, arguendo, that defense counsel was guilty of the misconduct charged, we hold, notwithstanding, that such misconduct was not grounds for granting a new trial for these reasons:
(1) When the court reconvened following the second conference on May 2, it explained to the jurors that it was the court’s responsibility to instruct them as to the law, that it does so after conferring with counsel, that it did not believe it would give them a particular instruction or two to which counsel for the defendant had referred, and that the jurors were [101]to take their instructions from the court. We believe that this admonition cured any possible prejudicial error and that, in accordance with article VI, section 13, of the California Constitution, the judgment should not be set aside.
(2) There was no motion for a mistrial at any time by counsel for the plaintiffs, in the apparent belief that defense counsel’s conduct, if error, was not prejudicial or that the court’s admonition cured the prejudice. By failing to make a timely motion for a mistrial, the alleged misconduct was waived. (Hansen v. Warco Steel Corp., 237 Cal.App.2d 870, 878 [47 Cal.Rptr. 428, 48 Cal.Rptr. 164].)
We next consider the plaintiffs’ cross-appeal predicated upon the court’s failure to give a conditional res ipsa loquitur instruction as requested by the plaintiffs.
The fatal mid-air collision between the two airplanes occurred on January 1, 1965, at approximately 12:30 p.m. over Folsom Lake at an altitude of 2,500 to 3,000 feet. The visibility was excellent, and both pilots were experienced, with many hours of flying in both single and multiple engine aircraft. At the time of the collision, the two planes, each on pleasure and sightseeing flights, had been in the air only a few minutes. As a result of the collision, the Comanche lost two or three yards of its right wing and plunged into the lake and was never recovered. The right half of the horizontal part of the tail of the Debonair was parted by the impact, but the plane managed to return to the Sacramento airport.
At the trial, defendant, the pilot of the Debonair, said he did not see the Comanche before the accident; that it was his practice to look all around and that he always scanned the horizon, left, right and forward, under visual flight rules conditions. There was testimony that the defendant was pointing out the scenery and other points of interest to his two passengers shortly before the collision. Edward Johnson, a correctional officer at nearby Folsom Prison, testified that he was on tower duty when the two airplanes passed over the prison at approximately the same altitude and the same rate of speed. The airplanes were flying in the same general direction, with the Comanche in the lead by about 400 feet and to the Debonair’s left by about 300 feet, and they seemed to be going on a trip together. Johnson said that after passing Folsom Prison the Comanche commenced a gradual turn to the right and had completed a half circle when the planes collided. Robert Stafford, who was 14 years old at the time of the accident, testified that he was less than a mile from the dam when he heard airplane engines, looked up and saw the Comanche coming down. He said it was in a fast spin, slowed into a very slow spin, and fell into the lake.
[102]Under the facts, the trial court correctly declined to instruct on the doctrine of res ipsa loquitur.
Application of the doctrine of res ipsa loquitur traditionally requires the presence of three elements or conditions. They are: (1) the accident must be of a type which ordinarily does not happen unless someone is negligent; (2) the accident must not be due to any voluntary act on the part of the plaintiff; and (3) the accident must be caused by an agency or instrumentality under the exclusive control of the defendant. (Witkin, Cal. Evidence (2d ed. 1966) § 260, p. 222; Prosser on Torts (3d ed.) p. 218; Ybarra v. Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258]; Cordova v. Ford, 246 Cal.App.2d 180, 184 [54 Cal.Rptr. 508].) Clearly, the first two conditions are present in this case. Equally clear is the fact that the third condition is absent. Two moving planes, not one, were involved in this mid-air collision.
We recognize that the doctrine has been extended since that day in 1863 when a barrel rolled out of the window of an English warehouse onto a passing pedestrian and became the occasion for the first use and application of the magic words “res ipsa loquitur." (Byrne v. Boadle, 159 Eng. Reprint 299.)1 Our case is not within any of the recognized extensions of the doctrine.
We point out further that a res ipsa loquitur instruction is properly refused unless the evidence supports a preliminary determination by the court that “in the light of past experience” (1) the accident was of the type which ordinarily does not happen unless someone was negligent, and (2) it is more likely than not that the accident was caused by the defendant’s negligence. (Faulk v. Soberanes, 56 Cal.2d 466, 470 [14 Cal.Rptr. 545, 363 P.2d 593]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 443 [247 P.2d 344]; La Porte v. Houston, 33 Cal.2d 167, 169 [199 P.2d 665]; Cordova v. Ford, supra, 246 Cal.App.2d 180.) Where it is equally probable that the negligence was that of someone other than the defendant the doctrine does not apply (see Faulk, supra, p. 470; Zentz, supra, p. 443; and La Porte, supra, p. 169).
[103]We do not believe that it can reasonably be said that the evidence in this case establishes that it is more probable than not that the defendant was negligent, and that his negligence caused or contributed to the accident. Johnson testified that he saw the Comanche circle in the direction of the Debonair from a distance of 300 feet to the latter’s left and from 400 feet ahead of it. At even the minimum speed necessary to maintain the two planes in flight, it cannot be said that the defendant could have avoided striking the Comanche, assuming he saw it. If Johnson’s testimony was correct, it cannot be said that it is more likely than not that the accident was caused by defendant’s negligence or that the defendant could have avoided the accident. On the other hand, the physical evidence in this case establishes that only the tail assembly and rear portion of the defendant’s plane were damaged. The record is silent as to damage to the nose or forward portion of the plane. This could indicate that the Comanche was not ahead of the Debonair and in plain sight thereof; rather, that the Comanche struck the defendant’s plane from the rear or from the side. This interpretation of the physical evidence is supported by the testimony of the defendant and his passengers that, though looking ahead, down and about them, they did not see the Comanche. Under this view of the evidence, as under Johnson’s testimony, it cannot reasonably be said that it is more probable than not that the accident was caused by the defendant’s negligence or that he could have avoided it.
In Cordova v. Ford, supra, 246 Cal.App.2d 180, it was held that the trial court did not err in refusing to give the same conditional res ipsa loquitur instruction refused in our case. Two moving vehicles were involved in the accident in Cordova. Reviewing the California cases and citing Prosser on Torts (3d ed.) at length, the court held that (1) the plaintiff had not brought the case within any of the recognized exceptions to that part of the doctrine which requires, before it may be applied, that it must be shown that the accident was caused by an instrumentality under the exclusive control of the defendant, and (2) the plaintiff failed to produce evidence permitting the conclusion that it was more likely than not that the defendant was responsible for the accident.
In the leading case of Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 444, the court said: “Of course, it must appear that the defendant had sufficient control or connection with the accident that it can be said that he was more probably than not the person responsible for plaintiff’s injury.” And “ ... it has been held that res ipsa loquitur will not apply if it is equally probable that the negligence was that of someone other than the defendant.” (P. 443, citing several California cases to that effect.)
Faulk v. Soberanes, supra, 56 Cal.2d 466, involved two moving vehi[104]cles. There, Chief Justice Gibson, speaking for a unanimous court, held that the trial court correctly refused to instruct on res ipsa loquitur, stating that: “Even if we assume that the doctrine of res ipsa loquitur might be used in some cases to require an explanation from both drivers with respect to accidents involving two moving vehicles, defendant would be placed at a serious disadvantage were she required to exculpate herself in order to avoid liability when the other driver, who may have been equally or solely negligent, is not before the court. (Cf. Phillips v. Noble, 50 Cal.2d 163, 167 [323 P.2d 385].)
“. . . To avoid the application of the doctrine of res ipsa loquitur defendant was not required to show that the accident was not caused by negligence on her part; the doctrine, as we have seen, was not applicable if the jury found that there was no greater probability that the accident was due to her driving than to the conduct of another driver.”
In our case, as in Faulk, “the other driver [pilot], who may have been equally or solely negligent, is not before the court.”
As our final reason for holding that it was not error to decline to instruct on the doctrine of res ipsa loquitur, we observe that the jury was fully instructed on the general law of negligence. Sixteen such instructions were given, including instructions on negligence; on ordinary care; that the negligence, if any, of the pilot of the Comanche is not chargeable to plaintiffs’ decedent; on proximate cause, including concurrent causes and liability therefore when the negligence of two or more persons contributes concurrently to the accident and without regard to the relative degree of their contribution; on looking and seeing; and two instructions with reference to Federal Aviation Regulations requested by plaintiffs.
In our opinion, these instructions provided ample guidance for the jury, and ample room to find, had they so interpreted the evidence, that the defendant was negligent, that his negligence was at least a concurring cause of the accident, and that he was, therefore, liable to the plaintiffs. Accordingly, the mandate of article VI, section 13, of the California Constitution is applicable. “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury . . . unless, after an examination .of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
The order granting a new trial is reversed. The judgment is affirmed.
STONE, P. J. Although I concur in the holding that the trial court properly refused to give instructions on res ipsa loquitur, I am not impelled to reach this conclusion because two airplanes and two pilots were involved.
[105]The rules governing res ipsa loquitur are not fixed by statute; rather, the doctrine and the rules governing its applicability are the products of judicial decision. Although the rules have been modified from time to time to meet differing factual situations, the matrix for the rules of applicability has always been the unfairness in requiring proof of specific acts of negligence by an innocent person injured through the negligence of others where he had no knowledge of the manner in which his injuries were caused. The passerby in Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Reprint 299, who was struck by a barrel of flour, was not aware of what hit him, or why, or how. Although the English judge, whose proficiency in Latin matched his perspicacity, said it was a plain case of “res ipsa loquitur,” the courts and legal scholars ever since have'been trying to explain in English the import of that profound observation.
Logically, it would seem that an innocent person injured in an accident that does not ordinarily happen unless someone is negligent might be as much in the dark about how he was injured, and as much entitled to the benefit of the doctrine of res ipsa loquitur as was the passerby struck by the falling barrel of flour, even though his accident resulted from the concurring acts of more than one person, each acting independently.
However, I agree that res ipsa loquitur is not applicable here because the liability of both pilots was not at issue in the trial, that is, plaintiffs went to trial against only one participant in the accident. To apply res ipsa loquitur piecemeal in cases of concurring causation seems to me to place an unfair burden on the one party who is brought to trial.
On another point, I think the fact the jury was fully instructed according to the standard rules of negligence, is irrelevant to the question whether res ipsa loquitur is applicable. (Di Mare v. Cresci, 58 Cal.2d 292, 299 [23 Cal.Rptr. 772, 373 P.2d 860].)
For examples of cases in which the doctrine has been extended see: In the common carrier-passenger type of case, Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432'[260 P.2d 63]; Sinan v. Atchison, Topeka & Santa Fe R. Co., 103 Cal.App. 703 [284 P. 1041]; Smith v. O’Donnell, 215 Cal. 714 [12 P.2d 933]; in certain types of malpractice actions, Seneris v. Haas, 45 Cal.2d 811 [291 P.2d 915, 53 A.L.R.2d 124]; and the typical rearend collision, Ponce v. Black, 224 Cal.App.2d 159 [36 Cal. Rptr. 419]; and see examples in Witkin, Cal. Evidence (2d ed. 1966) p. 233 et seq.
Smith v. O’Donnel, ibid., involved a mid-air collision of two planes. The doctrine of res ipsa loquitur was held to be applicable in favor of a passenger against the owner of the plane in which the passenger was riding, the owner being found to be a common carrier. The owner of the Comanche is not a party to this action.