Kerr v. Key System Transit Lines

BRAY, J. Defendants appeal from a judgment on a jury verdict in favor of plaintiff in the sum of $9,000. The sole question raised is that three instructions (two on res ipsa loquitur, and one on the duty of a common carrier) were erroneous.

Facts

Plaintiff was a passenger on a Key System bus going south on Washington Street, Oakland. The bus stopped at the hear [633]side of 12th Street because of railroad tracks. Plaintiff stood up to ring the bell to indicate that he desired to get off the bus on the far side of that street. He testified that the bus started with such a jerk that he lost his grip on the handle of the seat, was thrown to the floor on his back and was injured.

In his deposition the bus operator, Brown, corroborated plaintiff as to the position of the bus when plaintiff fell. Brown stated that he had stopped on the near side of 12th Street for the tracks and that just as the bus was crossing them he heard plaintiff fall. At the trial he testified that after stopping for the tracks, the bus proceeded across them to the far side of 12th Street, discharged two passengers and had started up when he first learned that plaintiff “was down” on the floor; that plaintiff then accused him of being “rough in the handling of the coach.” In his deposition he testified that he did not stop on the far side of 12th Street as there were no passengers to get off. Brown at no time denied that the bus had jerked. The nearest he came to doing so was his statement “as I approached the intersection at 12th and Washington I stopped for the tracks, then I gradually crossed the tracks and stopped at the coach stop on the other side of the tracks. Q. Yes. A. And I gradually moved in.” (Emphasis added.)

1. Bes Ipsa Loquitur.

Defendants admit the propriety of giving instructions on this subject, but claim that those given were erroneous. Instruction 1 on this subject commences: “From the happening of the accident involved in this case as established by the evidence there arises an inference that the proximate cause of the occurrence was some breach of duty required by law on the part of the defendants.” (Emphasis added.) Defendants contend that the italicized portion of this instruction took from the jury the right to determine whether there was any unusual motion on the part of the vehicle, the operator thereof having testified to gradually crossing the tracks, which they claim in effect was testimony that there was no “unusual motion” of the vehicle when plaintiff fell. Ordinarily the res ipsa loquitur instruction commences with some such statement as “If, and only in the event, you should find that there was an accidental occurrence as claimed by the plaintiff ...” (See BAJI p. 319.) However, if the evidence establishes without contradiction that an accident happened in the