# Phillips v. Noble

> California Supreme Court · March 28, 1958 · 50 Cal. 2d 163

URL: https://www.frixlaw.com/law-library/cases/9846940

## Case

- **Full name:** WALTER W. PHILLIPS, Appellant, v. GLENN R. NOBLE, Respondent; WALTER W. PHILLIPS, Appellant, v. CHARLES MITCHELL, Respondent
- **Court:** California Supreme Court
- **Decided:** March 28, 1958
- **Citations:** 50 Cal. 2d 163; 323 P.2d 385; 1958 Cal. LEXIS 144
- **Precedential status:** Published
- **Opinion:** Concurring in part by Schauer
- **Judges:** Gibson, Carter, Schauer
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9846940

## Opinion text

SCHAUER, J., Concurring and Dissenting.
In this case the majority reach a correct judgment but, regrettably, their opinion contains unsound discussion which, coupled with what appears to be intended as directions to be followed by counsel and trial courts in the preparation of instructions, may well lead to confusion and error.
The trial court in this case had given the time-tried and rationally correct instruction that “The mere fact that an accident happened, considered alone, does not support an inference that some person, or any party to this action, was negligent.” In criticism the majority declare: “The instruction told the jury that the mere fact that an accident happened does not support an inference that ‘some person, or any party to this action,’ was negligent.” In view of the heretofore recognized elements of proof {in addition to the mere happening of an accident) essential to drawing of the res ipsa loquitur inference, is not the statement indisputably correct? But the majority continue: “It should have been worded so as not to deny the existence of a probability that someone was negligent but instead to state that no inference arises that both drivers were negligent or that a particular one was negligent to the exclusion of the other.” It may be asked, wherein does the quoted instruction “deny the existence of a probability that someone was negligent?” And-is it not a startling thesis that the instruction should “instead . . . state that no inference arises that both drivers were negligent or that a particular one was negligent to the exclusion of the other?” Such a factual statement by a trial judge would clearly constitute an invasion of the jury’s province. And the majority continue: “However, since plaintiff did not request an instruction which would have apprised-the court that he was relying on the doctrine of res ipsa loquitur, we cannot say that the judgment here should be reversed because of the failure of the trial court to use words in the challenged instruction which would have avoided conveying *173 the idea that there was no probability of negligence on the part of at least one of the drivers. ’ ’ I read and reread the “challenged instruction” in vain for “words . . . conveying the idea that there was no probability of negligence on the part of at least one of the drivers. ’ ’ This instruction does not deal with “probability of negligence”; it is, rather, explanative and cautionary, in a purely abstract way, as to the elements of proof essential to the drawing of an inference.
If in addition to “the mere happening of an accident” there is evidence tending to show that a defendant had some substantial connection with the cause of the accident, and if there is also evidence showing the circumstances of the accident and those circumstances reasonably warrant an inference that the accident would not ordinarily or probably have happened in the absence of negligence by the defendant, then manifestly an inference may be drawn against him, and the jury may be so told. But obviously there is absolutely nothing in the challenged instruction which suggests the contrary. That instruction merely guards against drawing the inference .upon proof of the “mere happening of an accident, without more.” Application of the rule must depend upon what facts are found. Where the evidence admits of different findings, all potentially appropriate rules should be stated to the jury.
I concur in the majority’s holding that “res ipsa loquitur '. .'. cannot serve as a means of establishing intoxication or wilful misconduct,” and also in the judgment of affirmance.
McComb, J., concurred.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9846940. Public record. Not legal advice.