The opinion
THOMPSON, J., Dissenting.
—I dissent. In my judgment, the majority opinion unduly extends the application of the doctrine of
res ipsa loquitur.
In the earlier cases it was thought that the doctrine was never applicable in those cases where two instrumentalities under separate control were involved in the accident.
(Harrison
v.
Sutter St. Ry. Co.,
134 Cal. 549 [ 66 Pac. 787 , 55 L. R. A. 608], and
Diamond
v.
Weyerhaeuser,
178 Cal. 540 [ 174 Pac. 38 ].) Lately, it has been held proper to extend application of the rule to one of two involved instrumentalities where, at the time of the accident, it was a common carrier vehicle and where the plaintiff was seeking to establish the concurring negligence of those in control of both.
(Burke
v.
Dillingham,
84 Cal. App. 736 [258 Pac. .627], and
St. Clair
v.
McAlister,
216 Cal. 95 [ 13 Pac. (2d) 924 ].) The reason for extending the application of the doctrine to the last-mentioned cases lies in the fact that common carriers must exercise “the utmost care and diligence” for the safety of their passengers. (Sec. 2100, Civ. Code;
Housel
v.
Pacific Elec. Ry.,
167 Cal. 245 [ 139 Pac. 73 , Ann. Cas. 1915C, 665, 51 L. R. A. (N. S.) 1105];
Smith
v.
O’Donnell,
215 Cal. 714, 723 [ 12 Pac. (2d) 933 ].) In the last-cited case, after referring to the language of the first to the effect that by reason of the very high degree of care required of common carriers such accidents do not ordinarily occur, it is said: “The language is peculiarly apt in the instant case. If the proper degree of care is used a collision in midair does not ordinarily occur, and for that reason the doctrine was properly submitted to
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the jury.” However, the same may not be said of one driving an automobile who is under the necessity of exercising only that degree of care which the ordinarily reasonable man would exercise. Common knowledge dictates to us that automobiles collide with great frequency, where one of the drivers thereof is using ordinary care. Hence the distinction between the two is well illustrated by the familiar statement that
“ . . .
[T]he doctrine is applicable only where the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in their very nature they carry a strong inherent probability of negligence and in the light of ordinary experience would presumably not have happened if those who had the management or control exercised proper care.” (45 C. J. 1211.)
The distinction is well pointed out in
Griffen
v.
Manice,
166 N. Y. 188 [ 59 N. E. 925 , 82 Am. St. Rep. 630 , 52 L. R. A. 922], in these words: “Of course the relation of the parties may determine the fact to be proved, whether it be the want of the highest care or only want of ordinary care; and, doubtless, circumstantial evidence like direct evidence may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence.” And, in
East End Oil Co.
v.
Pennsylvania Torpedo Co.,
190 Pa. 350 -352 [ 42 Atl. 707, 708 ], the same fundamental difference is noted as follows: “The maxim
res ipsa loquitur
is itself the expression of an exception to the general rule that negligence is not to be inferred, but to be affirmatively proved. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer."
There is a still further reason for the application of the doctrine to common carriers generally which does apply here, and it is this, that the doctrine is based in part upon what is sometimes called the rule of convenience and sometimes called the rule of necessity, i. e., “as the management and control of the agency which produced the injury is, under the circumstances to which the doctrine applies, exclusively vested in defendant, plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, while defend
*71
ant, being more favorably situated, possesses the superior knowledge or means of information as to the cause of the accident, and should, therefore, be required to produce the evidence in explanation”. (45 Cal. Jur. 1205.)
In the instant cause, it cannot be said that defendant’s knowledge of the cause of the accident was superior to that of plaintiff, nor is any reason assigned why the latter should not prove the negligence of the former, if he was, in fact, guilty.
Furthermore, in order to arrive at the result reached in the prepared opinion, the cases of
Keller
v.
Cushman,
104 Cal. App. 186 [ 285 Pac. 399 ], and
Gritsch
v.
Pickwick Stages System,
131 Cal. App. 774 [ 22 Pac. (2d) 554 ], must be overruled. In my opinion, they cannot in principle be distinguished and, for the reasons already stated, we should adhere to the rule announced therein.
Langdon, J., concurred.
Rehearing denied.
Langdon, J., and Thompson, J., dissented.