Dempsey v. Market Street Railway Co.

DOOLING, J. This is a second appeal, the Supreme Court having affirmed an order granting a new trial after a verdict and judgment for defendant in Dempsey v. Market Street Railway Co., 23 Cal.2d 110 [142 P.2d 929]. The second trial resulted in a verdict for defendant and plaintiffs, who are husband and wife, testified that they boarded a streetcar operated by defendant and walked through the car to the front platform, Mrs. Dempsey preceding her husband, and that when Mrs. Dempsey was about to step down to the motorman’s platform from the main body of the car the car stopped with a sudden and violent jerk, throwing her forward onto the floor and causing the injuries complained of.

Plaintiffs proposed several instructions on res ipsa loquitur which the court refused to give. That this refusal was not an oversight is made clear by the following colloquy between counsel for plaintiffs and the court:

[218]“Mr. Hagopian: May I call your Honor’s attention to the fact that you probably overlooked some res ipsa loquitur instructions.

“The Court: No, I have considered that.”

It was error to refuse instructions on the doctrine of res ipsa loquitur. When a passenger on a common carrier is injured as a result of the manner in which the carrier is operated an inference of negligence arises under the doctrine of res ipsa loquitur. (Rystinki v. Central California T. Co., 175 Cal. 336, 344 [165 P. 952] ; Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 730 et seq. [81 P.2d 950, 118 A.L.R. 533] ; Lynch v. Market Street Ry. Co., 130 Cal.App. 433, 438-439 [19 P.2d 1009]; Middleton v. California St. Cable Ry. Co., 73 Cal.App.2d 641, 644 [167 P.2d 239].)

Defendant argues that the case was not one for the application of the res ipsa loquitur doctrine, because plaintiffs’ evidence, if believed, established the cause of the accident. This argument merits little comment. Plaintiffs testified only to a sudden and violent stopping of the car. The case is the typical one for the application of the res ipsa doctrine. (See cases cited, supra.)

It is also arguqd that the court substantially instructed the jury on res ipsa loquitur in the following instruction: “If you find from the evidence that plaintiff, lima Dempsey, was a passenger on the car of defendant and was proximately injured by being thrown to the front platform of the defendant’s street car on which she was a passenger, by reason of the sudden and violent jerking of said car while it was being operated along and upon Haight Street in the City and County of San Francisco, if such you find to be the facts, and if you find from the evidence that said jerking was due to the manner in which the said car was being operated and stopped; and if you further find from, the evidence that in the exercise of the highest degree of care and caution for the safety of passengers upon said car, said car should not have been operated and stopped in the manner in which it was operated and stopped, and that the plaintiff, lima Dempsey, did not by her negligence proximately contribute to- said accident and her injuries, if any, then I instruct you that your verdict must be in favor of the plaintiff, lima Dempsey, and against the defendant, Market Street Railway Company.” We have italicized certain language from this instruction. This italicized language instructed the jury, in effect, that they must find “from the evidence” that in the exercise of