Durr v. Jewitt

DRAPER, P. J. In this personal injury action, judgment on jury verdict was for defendant. Plaintiffs, a minor and her father, appeal.

[346]The minor plaintiff, then 7 years old, was seriously injured when a heavy iron gate fell on her. The gate was one of a pair at the entrance to a driveway, or service entrance, to a laundry. The gates were open, each pushed hack to the wall of the building from which it hung. Plaintiff backed against one of them, and it fell upon her. Action was brought against the laundry which owned and maintained the gates, and against respondent Jewitt, the operator of a drayage service. The laundry settled for $60,000, and the case was tried only as to respondent.

Plaintiffs sought to show that one of respondent’s trucks had negligently struck the gate shortly before the accident, breaking or weakening the pin which held it upright, and that the driver failed to report the incident or investigate the extent of the damage. Respondent denied that its truck had struck the gate, and this was the principal issue tried. In the more than 1,000 pages of reporter’s transcript, appellant points to three bits of cross-examination by respondent relating to striking of the gates by other trucks. Only two questions elicited answers at all indicating such impacts, and none specified in any way the date, force, or effect of any such blow.

On this record, appellants assert error in the trial court’s refusal to instruct that if the jury found that respondent’s truck and other vehicles negligently struck the gate, one of them breaking it and causing the injury to plaintiff minor, but could not determine which impact caused the break, “the burden of disproving proximate cause shifts to defendant ... to prove that its negligence was not the proximate cause of the injuries. ’'

Appellants’ argument is that the doctrine of a landmark California case (Summers v. Tice, 33 Cal.2d 80 [199 P.2d 1, 5 A.L.R.2d 91]) properly applies to the facts here shown. We cannot agree. In Summers, plaintiff and the two defendants were hunting. A quail flew between the two defendants and plaintiff. The defendants simultaneously fired at the bird. One shot struck plaintiff, but there was no way of determining which gun fired it. The court pointed out that the normal burden of proving proximate cause would deprive the wronged plaintiff of all recovery, merely because he could not establish which of the two clearly culpable defendants had actually injured him. It held that in such case the burden of proof of proximate cause shifts to the defendants.