Strother v. Adohr Creamery Co.

California Court of Appeal Jul 22, 1933 No. Docket No. 7983.Published

Before: Craig

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Holding. The court held that the doctrine of res ipsa loquitur was properly applied where a defendant failed to explain the failure to secure a wagon on a grade, allowing the jury to infer negligence.

Issues

Whether the doctrine of res ipsa loquitur applies to an injury caused by an unattended horse-drawn wagon on a grade.
Whether the jury instruction regarding the burden of proof for negligence was appropriate under the circumstances.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The doctrine of “res ipsa loquitur’’ is that when a thing which causes injury without fault of the injured person is shown to be under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur”

CRAIG, J.

A judgment for damages was entered upon a verdict of a jury in favor of the plaintiff, a minor child, on account of personal injuries, alleged to have resulted from negligence of the defendant’s employee. The defendants appealed.

A horse-drawn delivery wagon of the appellant company in custody of its driver, a co-defendant herein, stood unattended in a city street near the respondent’s residence. The latter climbed upon the same and fell or was thrown therefrom as the horse moved forward. The evidence upon the question in controversy is meager. It appeared that said vehicle was supplied with hooks to which by rings in the reins the same were to be tightly drawn back and fastened. Also, there was a brake held by notches and as testified by the driver, “when you push it up on the side it pulls it back into the notches which hold it in place”. When stopping to make a delivery, the rein “pulls the horse’s head back and that makes the lines taut . . . and in addition to that you had to put on the brake” to prevent the horse from moving during the driver’s absence. The appellants maintain that the fact that a child may not be capable of contributory negligence does not always render a defendant liable upon mere proof of injury. And they doubtless properly distinguish turntable cases which have been said to be exceptions to the general rule, since “if an owner became responsible merely because children were attracted, it would burden the ownership of property with a most preposterous and unbearable weight”.

(Loftus

Dehail,

133 Cal. 214 [65 Pac. 379].) An instruction given to the jury in the instant case and to which the appellants take especial exception stated: “If you find that plaintiff was injured by defendant’s horse and wagon, and if you further find that plaintiff was too young to be negligent, that the burden of proving lack of negligence falls on the defendants and if they fail to prove themselves free from negligence, then you

[407]

should find for the plaintiff.”

Scellars

Strother v. Adohr Creamery Co.

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CRAIG, J.

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