Mansfield v. Pickwick Stages, Northern Division, Inc.

LANGDON, P. J.

This is an appeal by the defendant Pickwick Stages from a judgment against it for seven thousand dollars for personal injuries alleged to have been sustained by plaintiff as a result of the alleged negligence of defendant in operating one of its busses upon which plaintiff was a passenger.

The points made by the appellant with relation to the alleged insufficiency of the complaint to properly plead negligence and the action of the trial court in giving certain instructions were considered by this court in two cases arising out of the same accident, this day decided by this court.

(Lawrence

v.

Pickwick Stages, ante,

p. 494, and

Leitert

v.

Pickwick Stages, ante,

p. 504 [229 Pac. 885, 889].) The portions of the records bearing upon these contentions are identical in the three cases.

[509]

It is also contended by the appellant that the doctrine of

res ipsa loquitur

does not apply to this case and, therefore, the instruction upon that phase of the case was erroneous. This position is taken because it is asserted that the plaintiff did not rely upon the mere happening of the accident as permitting an inference of negligence, but introduced evidence tending to prove specific acts of negligence to explain the accident. Authorities are cited to the general effect that if plaintiff relies upon specific acts of negligence, he may not, at the same time, have the benefit of any possible inference of negligence arising from the mere happening of the accident. The plaintiff did not plead specific acts of negligence. He pleaded the facts in such a manner as to bring them within the application of the doctrine of

res ipsa loquitur (Lawrence

v.