The opinion
MOSK, J., Concurring and Dissenting.
The trial judge in granting the motion for a new trial concluded the evidence was insufficient to establish negligence. Under well settled law we must ordinarily assume this is so, but here the trial court erroneously failed to consider this a conditional res ipsa loquitur case, as the majority opinion so persuasively demonstrates it to be. (Davis v. Memorial Hospital (1962) 58 Cal.2d 815 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The rule under these circumstances is that a “defendant will not be held blameless except upon a showing either (1) of a satisfactory explanation of the accident, that is, an affirmative showing of a definite cause for the accident, in which cause no element of negligence on the part of the defendant inheres, or (2) of such care in all possible respects as necessarily to lead to the conclusion that the accident could not have happened from want of care, but must have been due to some unpreventable cause, although the exact cause is unknown. In the latter case, inasmuch as the process of reasoning is one of exclusion, the care shown must be satisfactory in the sense that it covers all causes which due care on the part of the defendant might have prevented.” (Dierman v. Providence Hospital (1947) 31 Cal.2d 290, 295 [ 188 P.2d 12 ]; Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784 [ 28 Cal.Rptr. 277 ] ; McDonald v. Foster Memorial Hospital (1959) 170 Cal.App.2d 85, 102 [ 338 P.2d 607 ] ; Bischoff v. Newby’s Tire Service (1958) 166 Cal.App.2d 563, 569 [ 333 P.2d 44 ]; Oldis v. La Societe Francaise (1955) 130 Cal.App.2d 461, 469 [ 279 P.2d 184 ] ; Talbert v. Ostergaard (1954) 129 Cal.App.2d 222, 228 [ 276 P.2d 880 ].) If the res ipsa loquitur inference had been invoked herein, I would find that the defendants failed to overcome it by adequate affirmative evidence, and the trial court would not, or should not, have granted the motion for a new trial on the ground of *170 insufficiency of the evidence. (Gerhardt v. Fresno Medical Group (1963) 217 Cal.App.2d 353, 361 [ 31 Cal.Rptr. 633 ].)
To approve the granting of this motion penalizes the plaintiff who offered a proper res ipsa loquitur instruction, favors the defendants who erroneously opposed the res ipsa theory and instruction, and affirms the trial court which the majority opinion finds was in error. This is a result in which I cannot acquiesce.
The majority opinion does not discuss the question of excessive damages as a ground for new trial. Defendants here concede the injuries were both severe and permanent but attempt to support the claim that damages were excessive on the theory that “common knowledge would seem to dictate that the life expectancy of a child 6 years old in plaintiff’s condition could not be long.” No authority is cited to justify bringing that medical subject under the umbrella of common knowledge.
I concur in reversing the judgments notwithstanding the verdicts. I would reverse the order granting defendants a new trial.