Guerrero v. Brown's Lumber Co.

WARNE, J. pro tem.

*

This is the second appeal in this personal injury action. The first appeal was by the plaintiff from a judgment entered upon a verdict in favor of the defendants. That judgment was reversed. As one of the grounds for reversal this court held that the trial court erred in refusing to give an instruction requested by the plaintiff on the doctrine of res ipsa loquitur, which left the jury entirely free to determine whether the necessary elements of the doctrine were present.

(Guerrero

v.

Westgate Lumber Co.,

164 Cal.App.2d 612 [331 P.2d 107].)

The present appeal is by the defendants from a judgment on a verdict awarding plaintiff damages at the conclusion of the second trial.

The evidence produced at the second trial is for the most part the same as that adduced at the first. However, it is different in some material respects as will be pointed out later in this opinion.

At the second trial the court, at plaintiff’s request, instructed the jury on the doctrine of res ipsa loquitur as follows:

“From the happening of the accident involved in this case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant, Forrest Roy Stillwell. That inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference.

“When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defendant’s negligence. If the evidence tending to prove that the accident was caused by a failure of the defendant to exercise the care required of him has greater weight than the evidence

[532]

to the contrary, you will find in favor of the plaintiff on that issue.

“In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, that is a definite cause for the accident, in which there is not negligence on the part of the defendant, Forrest Boy Stillwell, or (2) such care on the part of that defendant that leads to the conclusion that the accident did not happen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.”