The opinion
CARTER, J.
I dissent.
The majority holds that the doctrine of res ipsa loquitur could not be invoked to establish defendant’s negligence as a matter of law; that the jury instruction contrary'to the application of the doctrine was not error; and that plaintiffs were not entitled to a reversal on the theory of trespass because it was not presented in the trial court. None of these positions is sound.
The ease presents a situation squarely and typically calling for the application of res ipsa loquitur. Not considering defendant’s purported “explanation” of the accident for the moment, the evidence shows without dispute that defendant while driving his car along a city street drove it off the street, across the sidewalk, through a fence and into plaintiffs’ yard and struck their home, causing the damage of which complaint is made; it is conceded that plaintiffs did not have, could not have had, anything whatsoever to do with the accident since houses, needless to say, cannot be moved about at the will of the owner to dodge cars which leave the street in front of a house. Defendant concedes he was the sole driver and operator of his car. In Druzanich v. Criley, 19 Cal.2d 439 [ 122 P.2d 53 ], a car being driven by defendant left the highway and upset, injuring passengers in the car who had nothing to do with its operation; res ipsa loquitur was held applicable. To the same effect see Fiske v. Wilkie, 67 Cal.App.2d 440 [ 154 P.2d 725 ], and cases there cited. In Godfrey v. Brown, 220 Cal. 57 [ 29 P.2d 165 , 93 A.L.R. 1092 ], the court held res ipsa loquitur available to a guest (before the change in the law as to the liability for injuries to guests) who was injured when the defendant driver-host collided at an intersection with another car driven by the other defendant (cited with approval in Ybarra v. Spangard, 25 Cal.2d 486, 493 [ 154 P.2d 687 , 162 A.L.R. 1258 ]). Harlow v. Standard Imp. Co., 145 Cal. 477 [ 78 P. 1045 ], held the doctrine applicable where an operator of a steam roller in a street ran it against and *174 damaged plaintiff’s house. Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715 [ 211 P.2d 905 ], and cases there cited, applied the doctrine where a ear ran into the rear of a stopped car. Price v. McDonald, 7 Cal.App.2d 77 [ 45 P.2d 425 ], involved an unattended parked car moving and colliding with plaintiff’s house. Defendant’s ear left the highway and went onto the sidewalk, injuring plaintiff who was on the sidewalk in Brandes v. Rucker-Fuller Desk Co., 102 Cal.App. 221 [ 282 P. 1009 ], and Smith v. Hollander, 85 Cal.App. 535 [ 259 P. 958 ]. (See also Ireland v. Marsden, 108 Cal.App. 632 [ 291 P. 912 ]; Brown v. Davis, 84 Cal.App. 180 [ 257 P. 877 ].)
There cannot be any doubt therefore that the doctrine was applicable in the instant case and the inference of negligence is very strong. It should also be observed that the jury cannot disregard the inference of negligence arising from res ipsa loquitur and if there is no showing of lack of negligence, it must find for the plaintiff. (Meyer v. Tobin, 214 Cal. 135 [4 P.2d 542]; Dierman v. Providence Hospital, 31 Cal.2d 290 [ 188 P.2d 12 ] ; Burr v. Sherwin Williams Co., 42 Cal.2d 682 [ 268 P.2d 1041 ]; Talbert v. Ostergaard, 129 Cal.App.2d 222 [ 276 P.2d 880 ]; Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432 [ 260 P.2d 63 ] ; Williams v. City of Long Beach, 42 Cal.2d 716 [ 268 P.2d 1061 ]; Ward v. Silveria, 102 Cal.App.2d 114 [ 226 P.2d 732 ].) Such showing must eliminate any possibility of negligence on the part of the defendant; if it fails to do so a verdict for defendant must be reversed. (Dierman v. Providence Hospital, supra, 31 Cal.2d 290 ; Druzanich v. Criley, supra, 19 Cal.2d 439 ; Burr v. Sherwin Williams Co., supra, 42 Cal.2d 682 , and cases there cited; Talbert v. Ostergaard, supra, 129 Cal.App.2d 222 ; James v. American Buslines, 111 Cal.App.2d 273 [244 P.2d-503].) As said in Dierman v. Providence Hospital, supra, 31 Cal.2d 290 , 295: ‘1 This is not to say that a defendant in a res ipsa loquitur case has the burden of proving himself free from negligence. . . . [But] [t]he general principle is, as stated by this court in 1919 (in denying a hearing in Bourguignon v. Peninsular Ry. Co., 40 Cal.App. 689, 694-695 [ 181 P. 669 ]) ‘that where the accident is of such a character that it speaks for itself, as it did in this case, . . . the 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 *175 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.’’ (Emphasis added.) And in James v. American Buslines, supra, 111 Cal.App.2d 273 , 276: “Where an accident is of such a character that the doctrine of res ipsa loquitur applies, defendant cannot escape responsibility except upon a showing either (a) 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 (b) 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.” (Emphasis added.) ■
In the instant case defendant did not eliminate all elements of negligence on his part in rebutting the res ipsa loquitur inference of negligence. The majority opinion discusses this matter from the standpoint of whether defendant showed that he did not have exclusive control of his car (an element of the res ipsa loquitur doctrine) but the real issue is whether he has rebutted the inference of negligence because at the time the defendant’s negligence would have occurred, when he was approaching and crossing the intersection, he was, without dispute, in full'control of his ear. * As I have said, defendant did not show due care in all respects at that time. He said he was traveling only 20 miles per hour west on Third Street when he approached the intersection with Arizona Street and he saw an automobile traveling north on Arizona 50 feet south of the intersection when he was 20 feet east of the intersection; that he did not see defendant’s ear again until it was 8 to 10 feet from him and he was in the intersection and it was traveling at 50 miles per hour. Obviously through lack of attention or deliberately, he drove into the path of a vehicle traveling 50' miles an hour when he had ample time to stop. At that speed he must have known that the car could not stop at the intersection, yet he proceeded across the intersection and into its path. He thus has not, as a matter of law, eliminated all negligence on his part and *176 shown the exercise of due care in every respect. It must be remembered that we are not considering the liability as between the other ear and defendant but between defendant and plaintiffs who had nothing whatsoever to do with the accident. Certain ly, the evidence shows some negligence on defendant’s part rather than a total absence thereof. Moreover, even if we speak of control by defendant at the time of the collision with plaintiffs’ house, the most defendant testified to was that he “must” have put his foot on the accelerator after the impact, that was merely his deduction from the facts, not evidence as to them. I would hold therefore that defendant failed as a matter of law to rebut the inference of his negligence and the judgment must be reversed, but there is more.
At least we have a case where defendant’s negligence has been established both by reason of the doctrine of res ipsa loquitur and defendant’s own testimony. In such case it cannot be doubted that the instruction given was error and prejudicial to plaintiffs. * It is true that plaintiffs did not request a res ipsa loquitur instruction but the jury is entitled to draw the inference even though not so instructed. (Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414 [ 289 P.2d 226 ], and cases cited.) The instruction given, supra, flies squarely in the teeth of the res ipsa loquitur doctrine. The very essence of that doctrine, where applicable, is that the happening of the accident does give rise to an inference of negligence; the instruction says it does not. It is fallacious to reason that plaintiffs did not show the applicability of the doctrine for, as seen, it was clearly applicable, and even though, as shown by defendant’s testimony, he lost control of his car when he collided with plaintiffs’ house, he unquestionably had control at the legally important time when he entered and crossed the intersection—when his negligence occurred (see authorities cited supra). It has been held that the instruction here given is inconsistent with one on res ipsa loquitur, and ground for granting a new trial. (Brown v. George Pepperdine Foundation, 23 Cal.2d 256 [ 143 P.2d 929 ]; England v. Hospital of Good Samaritan, 22 Cal.App.2d 226 [ 70 P.2d 692 ] ; see Kahn v. Triest-Rosenberg Cap Co., 139 Cal. 340 [ 73 P. 164 ].) Indeed, it is held that it tells the jury the doctrine does *177 not apply. (Connor v. Atchison etc. Ry. Co., 189 Cal. 1 [ 207 P. 378 , 22 A.L.R. 1462 ].) This court said in Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 261 [ 143 P.2d 929 ] : “The court, at the request of appellant, instructed the jury . . . that ‘The mere fact that an accident happened, considered alone, does not support an inference that some party or any party to this action was negligent. ’ . . . Under appellant’s theory of how the accident occurred the instruction is not erroneous when considered with certain other instructions. It may have confused the jury, however, in view of instruction No. 30 which states that ‘The inference of the negligence which you may draw in this case from the fact of the happening of the accident itself shifts the burden to the defendants of explaining the manner in which the accident happened. . . .’ (Italics added.) These two instructions contain inconsistent ideas and the jury may have been confused thereby.” (Emphasis added.) The cases relied upon by the majority are either distinguishable or plainly wrong and contrary to the Pepperdine and England cases. In Middleton v. Post Transp. Co., 106 Cal.App.2d 703 [ 235 P.2d 855 ], the court cites no authority except a Missouri case for its holding. It does not refer to the Pepperdine and England cases. The reasoning in that case contained in the quotation therefrom that the instruction is a correct statement of the law because the jury might find that certain elements of res ipsa loquitur were not present is of no help because they are told that this is not a case of res ipsa loquitur—there is no inference of negligence from the happening of the accident; they were told flatly in one breath that there was no such inference and in the next by the res ipsa loquitur instruction that there might be if certain other conditions were present such as exclusive control and defendant must be better able to explain the accident. The latter factor is not a necessary prerequisite to res ipsa loquitur (Burr v. Sherwin Williams Co., supra, 42 Cal.2d 682 ; Seneris v. Haas, 45 Cal.2d 811 [ 291 P.2d 915 ]), and the argument in the majority opinion that this case is different because two ears driven independently were involved, is not pertinent (see Godfrey v. Brown, supra, 220 Cal. 57 ). This case is more like those in which “because of the nature of the particular accident, an inference of negligence . . . may be (is) so strong that no reasonable man could fail to accept it. . . .” (Burr v. Sherwin Williams Co., supra, 42 Cal.2d 682, 689 .) In Silva v. Pacific Greyhound Lines, 119 Cal.App.2d 284 [ 259 P.2d 743 ], two vehicles were in *178 volved and the instruction in question was held not prejudicial because it was closely “tied into the instruction which relates to the negligence of the operator of another vehicle. ’' Here we have no such tying in with the car with which defendant said he collided; the driver of the other car was not a party and the instruction says there is no inference of negligence as to a party to this accident. The instruction in Bazzoli v. Nance’s Sanitarium, Inc., 109 Cal.App.2d 232 [ 240 P.2d 672 ], was not the same as the one here given. In Seedhorg v. Lakewood Gardens etc. Assn., 105 Cal.App.2d 449 [ 233 P.2d 943 ], the jury were in effect told that the instruction given in the instant case did not prevent the inference said to arise under the res ipsa loquitur doctrine.
The reasoning of the majority that, as when the instant instruction and those on res ipsa loquitur are both given, there is no prejudicial error, there can be none where only the instant one is given, is not tenable. That does not follow for where both are given the jury is at least told there is an inference although they are also advised to the contrary. But where they are told, as here, that there is no inference, there is nothing left for the jury to do except find no liability. Any jury would naturally infer that the driver of the car which crashed into a man’s home was negligent but when they are specifically told, as they were here, that they could not so infer, there was nothing left for them to do except find for defendant. Unquestionably the instruction was erroneous and highly prejudicial. The jury was instructed that there could be no recovery unless it was proved that defendant was negligent and that there was no inference of negligence. Plaintiffs were given no opportunity to recover inasmuch as the nature of the accident was such that they could not prove negligent conduct on the part of defendant except by in-, ference.
The majority holds that plaintiffs cannot rely on the theory of trespass because it was not urged in thfe trial court. Even assuming that defendant lost control of his car because of its collision with the other car, and, as a result it ran into plaintiffs’ home, yet he would be liable for trespass if his negligence contributed to his loss of control (Rest., Torts, §§ 165, 166, 164, 158), and as we have seen, defendant was negligent as a matter of law. Plaintiffs’ complaint and proof contained all of the elements of an action for negligent trespass ; that theory was therefore presented in the case although no instructions were offered thereon. The jury was instructed *179 that plaintiffs could not recover unless defendant was negligent. Those instructions were not framed on the theory of trespass and were for that reason erroneous. The mere fact that the theory of trespass as such was not mentioned can make no difference.
I would reverse the judgment.
The exclusive control in res ipsa loquitur is at the time of the negligence rather than at the time of the injury. (Gordon v. Aztec Brewing Co., 33 Cal.2d 514 [ 203 P.2d 522 ]; Escola v. Coco-Cola Bottling Co., 24 Cal.2d 453 [ 150 P.2d 436 ].)
The instruction given reads: "The mere fact that an accident happened, considered alone, does not give rise to legal inference that it was caused by negligence or that any party to this accident was negligent.” (Emphasis added.)