PETERS, J. Plaintiff, Jenny Gene Fowler, a minor, appeals by her guardian ad litem, (her father) from a judgment of nonsuit in an action for damages for injuries sustained by plaintiff while attending defendant's private nursery school.
The sole issue is whether the evidence, including all reasonable inferences, viewed, as must be done on an appeal from a judgment of nonsuit, most favorably to the plaintiff, presents a case where the jury could find that the doctrine of res ipsa loquitur applies. It is our opinion that the jury could so find, and, for that reason, that the judgment should be reversed.
First, as to the facts. In a conference held prior to the selection of a jury, the trial judge, being advised of the basic facts of the case, and of plaintiff’s contention that res ipsa loquitur applied thereto, indicated the view that “a nonsuit situation” might be presented. Counsel for both parties then stipulated that, in order to save time, the jury would be deemed impaneled and sworn and the matter of nonsuit could be presented to and ruled on by the court on the basis of plaintiff’s opening statement to the jury. Thus, on this appeal, the opening statement is crucial. It is as follows:
“Plaintiff in this case of Fowler versus Seaton expects to prove the following facts: Minor plaintiff, Jenny Gene Fowler began attending the Happy Day Nursery School in September, 1958. The Happy Day Nursery was a pre school nursery where children would be left for the day by their parents. Their nursery consisted of a house and a little children’s playground with such play things as a swing and slide and similar paraphernalia. The Happy Day Nursery is located in the City of Van Nuys, County of Los Angeles, State of California. The Happy Day Nursery was owned and operated at all times herein relevant by the defendant, Annabelle Seaton.
[684]"The nursery school made a weekly monetary charge to the parents of such pre school age children who attended there. The school is, of course, a private school and the defendant was at all times licensed to operate such a school.
“On January 21, 1959 the minor plaintiff, Jenny Gene Fowler was taken to the said Happy Day Nursery School by her mother and left in charge of and custody of the defendant at about 9:00 a. m. of that day. At that time Jenny Gene Fowler was three years and ten months of age. When her mother left her in the custody of the defendant on that morning of January 21, 1959, Jenny Gene Fowler was in good health and sound of limb and body and she was well and had no marks on her body.
“Jenny Gene Fowler’s mother picked her up at the nursery school at approximately 6:00 p. m. of said day. At that time the defendant told plaintiff’s mother that Jenny Fowler had had an accident in that the child had wet her pants.
“However, we will offer proof that the child had stopped wetting her pants approximately a year prior to this day of January 21, 1959.
“On the way home that evening and for the remainder of the evening the child appeared downcast or depressed and stayed close to her mother at all times. At the dinner table at approximately 7:00 p. m. Jenny Gene Fowler’s father noticed that the child’s eyes were crossed. The child’s hair was arranged in bangs over her forehead and her forehead was not usually visible. At that time the mother approached the child to look into the child’s eyes. The mother pushed the child’s hair away from the forehead, for the first time noticed a sizable round protruding bump on the child’s forehead.
“Jenny Gene Fowler had been in the mother’s immediate presence ever since the mother had picked her up at the school, the nursery school, and the child had not received any injury or had not been in any accident whatsoever from the time she was picked up at the nursery school until her parents observed the cross eyes and bump on the child’s forehead at the dinner table.
“The mother immediately called the defendant at the nursery school and asked what had happened to plaintiff at the school that day. Defendant replied that another child had struck the plaintiff.
“Attorney for the minor plaintiff took the deposition of the defendant Annabelle Seaton and Miss Seaton testified in effect as follows:
[685]“Near the end of the day defendant had four or five children in a room seated in a semi circle on the floor looking at television while the children were waiting to be picked up by their parents. Minor plaintiff was one of the children in this group. None of the children in this group were more than five years of age. The defendant testified that she was in the room somewhat behind the children at the time observing them, when suddenly a little boy named Bobbie Sehimp seated on the floor next to minor plaintiff hit minor plaintiff without warning in the forehead area of her head. The defendant testified that Bobbie Sehimp had nothing in his hands.
“Some time early the following morning, January 22, 1959, minor plaintiff had a nose bleed and was vomiting. She also had a slight temperature. From the evening of January 21, 1959 minor plaintiff’s eyes would intermittently cross and uncross until within several months the child’s eyes were constantly crossed.
“The minor plaintiff had never had cross eyes before the accident. Plaintiff will prove by a competent medical doctor that plaintiff, Jenny Gene Fowler, suffered a concussion of the brain on January 21, 1959, and that a blow to the forehead —and that said blow to the forehead caused said concussion, that said blow and assault resulted, and shock resulted in Jenny Gene Fowler’s eyes becoming crossed.
“We will prove through said medical authority that some children have a latent tendency to crossing of the eyes. That the fusion mechanism which causes a person’s eyes to function in parallel unison and see singularly is very delicately balanced in a small child the age of minor plaintiff, and that a blow or deep shock which might result from a blow may cause the fusion mechanism to cease to function properly and that the delicate muscles of the eyes become imbalanced.
“Asa result of the accident minor plaintiff had had surgery to the right eye. Her eyes are still crossed. We will prove through a medical specialist that one additional operation will be necessary and possibly a third, that cosmetically the appearance of plaintiff’s eyes can be improved to normal or almost normal position, she may have some impairment of good sight.
“We will offer proof of certain unpaid medical bills to which plaintiff is responsible and the estimated cost of future medical care and surgery to her eyes necessitated by the accident.
“ [E]ither because of the shock or fright resulting from the [686]accident or because of the age of plaintiff, she has been unable to state or give any information concerning the accident. No information is available from the other children because of their tender years.
“Plaintiff will prove through a medical doctor that the blow on the forehead and resulting concussion to minor plaintiff on January 21, 1959 was of such a force that it would have been impossible for a boy five years of age or less sitting on the floor with nothing in his hands to have delivered a blow of such force as to have caused the said injuries to minor plaintiff, and that the only inference that can be drawn is that the defendant, Annabelle Seaton, is not telling us what really happened that day at the nursery school and that the only reasonable inference which can be drawn is that the defendant, Annabelle Seaton, did not exercise reasonable care for the safety of the children in her care and custody, and, more specifically with reference to minor plaintiff.
“I should also state with regard to the damages sustained by the minor plaintiff and as a result of her eyes crossing she has become more withdrawn and has certain psychological problems and has not done as well in school as she might otherwise had it not been for this accident.”
In accord with the agreement made prior to the trial defendant moved for a nonsuit at the conclusion of the opening statement. After argument by both parties—directed solely to the question of whether the doctrine of res ipsa loquitur could be applicable—the motion was granted and judgment was entered accordingly.
It is our opinion that the jury could find that the doctrine of res ipsa loquitur applies under the facts here involved. Generally, that doctrine applies “where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.” (Siverson v. Weber, 57 Cal.2d 834, 836 [22 Cal.Rptr. 337, 372 P.2d 97]; accord Faulk v. Soberanos, 56 Cal.2d 466, 470 [14 Cal.Rptr. 545, 363 P.2d 593]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [247 P.2d 344].) Conversely, where no such weight of probabilities can be found, res ipsa loquitur does not apply. (Tucker v. Lombardo, 47 Cal.2d 457, 465 [303 P.2d 1041]; Zentz v. Coca Cola Bottling Co., supra, at p. 442; LaPorte v. Houston, 33 Cal.2d 167, 169 [199 P.2d 665].)
One of the frequently quoted statements of the applicable [687]rules is to be found in the opinion of Chief Justice Erie in Scott v. London & St. Katherine Docks Co. (1865) 3 H. & C. 596, quoted in Prosser on Torts (2d ed. 1955) section 42, at page 201, as follows: “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
Of course, negligence and connecting defendant with it, like other facts, can be proved by circumstantial evidence. There does not have to be an eyewitness, nor need there be direct evidence of defendant’s conduct. There is no absolute requirement that the plaintiff explain how the accident happened. Ees ipsa loquitur may apply where the cause of the injury is a mystery, if there is a reasonable and logical inference that defendant was negligent, and that such negligence caused the injury. (Prosser on Torts, supra, at p. 204.)
As applied to this case, the test is whether a reasonable man could reach the conclusion from the evidence offered that it was more likely than not that the injury involved was the result of negligence on the part of defendant. In applying that test, and in weighing the evidence, we must keep in mind the warning given in Ybarra v. Spangard, 25 Cal.2d 486, 489-490 [154 P.2d 687, 162 A.L.R. 1258], that the court should not “lay undue emphasis on the limitations of the doctrine,” or give too “little attention to its basic underlying purpose,” otherwise “a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person. ’ ”
From the opening statement it appears that the defendant, for pay, operates a private preschool nursery. The plaintiff, aged 3 years and 10 months, and so, of course, incapable, as a matter of law, of being contributively negli[688]gent, was turned over to that school at 9 a. m., in a sound, healthy condition, and returned to her parents at 6 p. m. in a seriously injured condition. After the child was taken home it was discovered that she had, under the bangs that covered her forehead, a “sizable round protruding bump,” and that her eyes were crossed. It was then discovered that this blow had caused a concussion of the brain, resulting in optical nerve damage that required surgery and will require future surgery.
Thus, it appears that the school was a preschool nursery operated for profit. We know, as a matter of common knowledge, that such schools are primarily intended to give the children an opportunity to engage in supervised group play and other supervised activities. Such schools hold themselves out as furnishing supervision for the children. Furnishing supervision is the basic service for which these schools charge. It is their main function. The duty owed by the operator of such a school to the students in attendance is substantially different in degree from that owed by schools whose primary function is education, where the children are much older, and where supervision is incidental. The supervision required must be commensurate with the age of the children and with their activities. Thus the several eases cited by respondent relating to the duties owed to grammar and high school students are not in point. Certainly they are not controlling.
Thus, from the opening statement, it appears that the defendant, who had the exclusive control of the plaintiff at the time of injury, was under a duty to exercise care in the supervision of the infants in her school, and to keep them under supervision at all times that they were at the nursery.
Could the jury find that it is more probable than not that such duty was violated ? The answer must be yes. Not only was the plaintiff healthy when delivered and badly injured when returned to her parents, but it appears that defendant had a guilty conscience and tried to cover up the injury. Certainly, it appears that defendant knew something had happened to plaintiff while plaintiff was under her supervision. Defendant told the mother of the plaintiff when she arrived to take the child home, that Jenny had “had an accident.” She had “wet her pants.” This explanation is infer-ably false because counsel offered to prove that the child had stopped wetting her pants a year previously. But this is not all. When the mother of Jenny took her home and dis[689]covered the big bruise on the forehead under the bangs, and the crossed eyes, she called defendant and demanded, quite properly, an explanation. Certainly, she was entitled to one, and to an honest one. When defendant was faced with the physical facts that her prior “explanation” obviously could not account for, she gave another story, also inferably false. She said that another child had struck the plaintiff with his hand. Then when her deposition was taken she purported to explain the concussion by stating that while seated on the floor one of the small boys in the group hit plaintiff with his hand. Plaintiff’s counsel offered to prove by medical evidence that the brain concussion, here involved, could not have been caused as described by defendant.
From this evidence the jury could infer, reasonably, that the proffered explanation was false. This is important. Here we have a defendant, who had supervision of the child when the injury occurred, offering a false and certainly an unsatisfactory explanation. She was under a duty to explain. From this the jury could infer that defendant had a consciousness of guilt. This itself is evidence of a circumstantial nature that goes onto the scales in determining whether “it is more probable than not” that the injury was the result of defendant's negligence. Where, under the evidence, an explanation is called for, if the defendant refuses to explain or gives a false explanation, it is reasonably inferable that the defendant is hiding something which, more probably than not, is his negligence. Similar conduct, even in criminal cases, is frequently the basis of such an inference. Inferences based on evidence of flight, on failure to deny accusatory statements, on recent possession of stolen goods, and on false explanations, are familiar examples. (See 19 Cal.Jur.2d, Evidence, § 400 et seq., p. 139 et seq.; Code Civ. Proc., § 1870, subd. 3.)
It must be remembered that, at this stage of the proceedings, we are involved solely with the question of whether the plaintiff has offered to prove a circumstantial case that should have gone to the jury. As pointed out, this depends on the reasonable probabilities. Is it more reasonable than not, where a sound, healthy child is delivered to the custody of defendant, and a badly damaged child with concussion of the brain is delivered back, that defendant was negligent in her supervision, when the defendant, when faced with the physical facts, which she had not volunteered, gave a false explanation ?
[690]Certainly it is true that this was an unusual occurrence. While it may be common knowledge, as contended by defendant, that in the normal course of play children suffer bumps, bruises, and scratches, it certainly is not a matter of common knowledge that children normally come home from a nursery school with concussion of the brain and crossed eyes. If that were “normal” or “usual,” nursery schools would not stay in business very long. Such a school, as already pointed out, by its very nature, holds itself out as a place where children can be safely left and carefully supervised.
Of course, in most res ipsa eases, it is incumbent on the plaintiff to show that the actions of the plaintiff did not contribute to the injuries. Here it was shown that plaintiff is of an age that, as a matter of law, she could not be guilty of contributory negligence, and also that, as a result of shock caused by the accident she cannot remember or communicate the cause of the accident. Under such circumstances, of course, she is entitled to the presumption that she exercised due care for her own safety. Thus this element of the doctrine was supplied.
Here we have a severe and unusual injury, one that does not normally occur in nursery schools if the children are properly supervised. We have a volunteer explanation that was inferably false, and, when faced with a demand to explain, the proffering of another inferably false explanation. We have a ease where it appears that the plaintiff did not contribute to her own injuries. Thus the proffered evidence showed the existence of a duty of careful supervision owed by defendant to plaintiff. Under the circumstances it is inferable that defendant had a consciousness of guilt, knew the cause of the injury, was under a duty to explain, and was trying to conceal it. Thus it may be reasonably inferred that the duty was violated. Certainly it is more probable than not that the injury was the result of defendant’s faulty supervision. Thus the jury could find that the doctrine of res ipsa loquitur is applicable, and for that reason it was error to grant the nonsuit.
The judgment appealed from is reversed.
Gibson, C. J., Tobriner, J., and Peek, J., concurred.