Horney v. Dillingham

California Court of Appeal Feb 23, 1927 No. Docket No. 5300.Published

Before: Cashin

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Holding. The court held that the doctrine of res ipsa loquitur was properly applied because the complaint alleged negligence generally and the evidence did not clearly establish the specific cause of the accident. The court further held that the issues of negligence and contributory negligence were questions of fact for the jury.

Issues

Whether the doctrine of res ipsa loquitur was applicable given the allegations of the complaint and the evidence presented.
Whether the evidence supported the jury's findings regarding the defendants' negligence and the plaintiff's alleged contributory negligence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where the explanation leaves it doubtful as to whether or not the ultimate cause of the injury is the negligence of the party charged it is proper to instruct the jury as to the res ipsa loquitur doctrine”

“In the instant ease negligence was alleged generally”

[444]

CASHIN, J.

An appeal by defendants from a judgment entered on a verdict for the plaintiff in an action to recover damages for personal injuries. The appeal is presented on the judgment-roll and a bill of exceptions.

Defendants were common carriers operating automobile stages between the cities of Whittier and Long Beach. The plaintiff on the. night of the accident was a passenger for hire on one of the stages mentioned, and was being transported from the town of Bellflower to the city of Long Beach.

The complaint alleged that while the stage was passing along the route mentioned, and while plaintiff was in the exercise of due care, the defendants “so carelessly and negligently managed said stage or automobile bus that as a result of such negligence and carelessness said automobile bus was run off the road- into a ditch at the side of the main highway,” causing the physical injuries of which plaintiff complains, to her damage in the sum alleged. These allegations were denied by defendants who, as a special defense, alleged that the night of the accident “being dark and rainy the plaintiff, knowing the lights on the stage to be poor, was guilty of negligence proximately contributing to her injuries by continuing as a passenger therein.”

As grounds for reversal it is urged that the court erred in instructing the jury as to the doctrine of

res ipsa loquitur,

which defendants contend was inapplicable in view of the allegations of the complaint and the facts shown by the evidence ; and, further, that the only conclusion reasonably to be drawn from the evidence supports the defense of contributory negligence.

In addition to the instructions mentioned the jury was instructed that the burden of proving negligence by a preponderance of the evidence rests upon the party alleging it.

The accident occurred between 8 and 9 P. M. of January 1, 1922. It was shown that the stage left Bellflower at about 8 P. M. and that the night was dark and stormy. The plaintiff testified that when she boarded the stage the headlights were burning and that she noticed nothing unusual in their condition; that after the stage started the driver mentioned that the lights were failing; that the stage was stopped at a filling station about three-quarters of a mile beyond Bellflower for the purpose of procuring new batteries,

Horney v. Dillingham

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CASHIN, J.

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