Shaw v. Pacific Greyhound Lines

SCHAUER, J., Dissenting.

I cannot agree with the majority’s holding that it was error, and that the trial judge properly found it to be prejudicial error, to instruct the jury 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.”

The fact that an accident happened considered with other circumstances may in the light of those circumstances support an inference of negligence. But the “mere fact that an accident happened, considered alone,” cannot ever prove negligence of any person if for no other reason than that the narrow hypothesis of such statement excludes from its purely abstract concept evidence of any circumstance whatsoever indicative of the cause of the accident or showing the connection of any person with the accident either as causing it or being injured by it. Likewise, the “mere fact that an accident happened, considered alone,” severs the hypothesis from the circumstance that an instrumentality may have been involved in the accident, and if an instrumentality was involved, it excludes the effect of proof that any person was in control, or responsible for management, control or condition, of such instrumentality. Manifestly, the “mere fact that an accident happened, considered alone,” does not include consideration of a showing that the accident did not happen to a trespasser on private property, or that it did occur on a public highway, or to a passenger in a vehicle whether as a guest or a fare-paying patron of a common carrier, or of any other circumstance whatsoever.

The majority assert that “The direction that the mere happening of an accident, considered alone, does not support an *161 inference of negligence would appear to contradict the usual statement of the doctrine of res ipsa loquitur as found in the typical instructions given on the subject, namely, that an inference arises from the happening of the accident that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. In the absence of a proper explanation of the relationship between the two instructions, the words ‘mere’ and ‘considered alone’ might not prevent laymen from erroneously concluding that under no view of the evidence could an inference of negligence be drawn from the happening of the accident.”

The above quoted declaration appears to me to be unjustiable. It appears to be more concerned with the interests of the claimant than with fairness of the trial. Heretofore the law has been that much more than the “mere happening of an accident, considered alone” must be shown to support an inference of negligence. Even the learned author of the majority opinion in this case has in the past recognized that there must be some rational basis of probability in fact for the inference of negligence and some factual showing of some connection through control, management or responsibility between the defendant and the instrumentality, if any, causing the injury to the plaintiff. (See e.g., Escola v. Coca Cola Bottling Co. (1944), 24 Cal.2d 453, 457 [1] et seq. [ 150 P.2d 436 ]; Ybarra v. Spangard (1944), 25 Cal.2d 486, 489 [1] [ 154 P.2d 687 , 162 A.L.R. 1258 ]; Zentz v. Coca Cola Bottling Co. (1952), 39 Cal.2d 436 , 440 et seq. [ 247 P.2d 344 ] ; Burr v. Sherwin Williams Co. (1954), 42 Cal.2d 682, 687 [2] [ 268 P.2d 1041 ].)

The language of the quoted instruction is clear and unless the law is to be materially changed to an extent not delimited by the majority it merely declares an uncontrovertible truth. The giving of it is simply an aid to the layman juror, designed to assist him in gaining a true and clear understanding of the law upon which liability of the defendant justifiably may be found; it tends to preclude him from being misled into believing that proof of an accident without more is proof of fault on the part of any person involved. It serves to make clear to the jurors that it is not the mere happening of the accident, but is in the circumstances causing it, that fault and liability may be found.

Our concern should be addressed to both parties, to the end that each may have justice under the law. It is especially important that the subject instruction be given whenever *162 the res ipsa loquitur instruction is given, lest the jurors be misled as to the essentials for application of the latter doctrine. If the res ipsa doctrine is lawfully to be applicable in any case, then certainly much more must be proven, and necessarily must be considered in determining whether the defendant was negligent, than the “mere fact that an accident happened, considered alone.” The issue to be resolved in such eases is not merely did an accident happen, but, rather, do the circumstances relative to the cause of the accident reasonably indicate that the defendant was negligent and that his fault was a proximate cause of the accident?

An enumeration of the elements essential to warrant invocation of the res ipsa doctrine in resolving the issue demonstrates that the instruction complained of here is in no way inconsistent with proper application of res ipsa when its elements are proven. To hold that it would be error in a res ipsa loquitur ease to instruct that the “mere fact that an accident happened, considered alone, does not support an inference that . . . any party to this action, was negligent,” is either to belie all other 1 supposed essential elements of res ipsa, or to conceal or de-emphasize and confound them to the bemuddlement of jurors. The innocent declaration of the subject instruction does nothing worse than tend to make the jurors understand that liability, if it exists, must be found in the cause, not the mere happening, of the accident

I take further issue with the majority on the ground that their holding essentially implies that jurors are stupid, too stupid to understand the meaning of the simple words appearing in the criticized instruction, or to correlate its concept to other instructions and the evidence. My observation of jurors in action supports a conclusion quite to the contrary. Certainly we must recognize that jurors are laymen, many of them unlearned in the law, and they are entitled to every help the court can give them. But it should not be presumed that they can understand all other instructions except the simple one quoted above. In my view the subject instruction would tend to clarify, not to confuse, the applicable law and, hence, to protect the jurors against inappropriate inferences based on the mere happening of the accident and without proof of all the elements prerequisite to the res ipsa loquitur inference.

The opinion of the majority here appears to be another *163 considered step toward the goal foreseen in the dissent in Butigan v. Yellow Cab Co. (1958), 49 Cal.2d 652, 661, 664-665 [ 320 P.2d 500 ].

For the reasons above stated I would reverse the order granting a new trial.

McComb, J., concurred.

Appellant’s petition for a rehearing was denied April 23, 1958. Sehauer, J., and McComb, J., were of the opinion that the petition should be granted.

Other than the “mere fact that an accident happened, considered alone.”