Opinion
Hearing Granted by Supreme Court Oct. 10, 1927.
Appeal from Superior Court, Los Angeles County; Harold Louderback, Judge.
Action for personal injuries brought by W. H. Michener against C. R. Hutton and another. From a judgment for plaintiff, defendants appeal. Reversed.
COUNSEL
James, Pace & Smith, of Los Angeles, for appellants.
Jennings & Belcher, of Los Angeles, for respondent.
OPINION
CONREY, P. J.
The judgment rests upon the verdict of a jury, which awarded damages in the sum of $2,000. Defendant Hutton was the plumbing contractor for a residence building in course of construction; defendant Goekler was his employee who did the actual plumbing work; plaintiff was a carpenter at work on the same building. Defendants appeal from the judgment.
On the 27th day of September, 1922, Goekler was engaged in the installation of a vent pipe running from the bathroom on the second floor and out through the roof of the building. The pipe was run up in sections, each one of which was bell-shaped on the upper end, so that the section next above it rested in the bell-shaped top of the one next below and was fitted therein. The top piece, about 30 inches in length, extended through the roof and above it a distance of one foot. According to the uncontradicted testimony of Goekler, when he left his work he had installed this top piece in the manner above described. On the 28th day of September Michener was engaged in doing carpenter work on the ground floor, and was nailing in between the studding certain pieces known as fire stops. The plumber had not been on the building during that day. It is clear that the top piece of vent pipe could not have fallen out of place where Goekler had left it, and there is no evidence showing when or how it had been removed from position. Nevertheless, it is a proved fact that on the afternoon of the 28th, while Michener was at work as above stated, a 30-inch piece of vent pipe fell from the floor above and hit and injured Michener. It was then found that the top piece of the vent pipe had disappeared from its position, and apparently it was this piece which struck Michener. If it had been removed from position and left loosely at some place from which it rolled off and fell to the ground below, this must have been done by some one other than the defendants, and the defendants would not be responsible for the consequent injury. Therefore the judgment must rest in part upon an implied finding by the jury that Goekler’s testimony describing his work and the condition in which he had left this piece of pipe was not true. In this condition of the case the plaintiff brought to his aid the doctrine of res ipsa loquitur, which in substance is the rule that, under some circumstances, the fact of an accident which causes injury is itself evidence of negligence by the person who was in charge of the work or structure from which the accident or injury proceeded.
If the rule above stated was applicable to this case, then the mere fact that the pipe fell upon the plaintiff and injured him would constitute evidence legally sufficient to overcome Goekler’s testimony showing that he had left the pipe in an entirely safe position. The court adopted plaintiff’s theory of the law on the question indicated, and in accordance therewith gave its instructions to the jury. Instruction XIV reads as follows:
"If you find, however, from the evidence that the plaintiff was injured by the falling of the pipe, and if you further find that the pipe was under the management and control of the defendant, and that under such circumstances the pipe would not ordinarily have fallen, had the defendants exercised ordinary care in its control and management, then the mere fact that said pipe fell, if you so find, furnishes reasonable evidence that the accident, if any, arose as a result of negligence on the part of those having the control and management of the pipe, unless those having the control and management, by the evidence, explain the cause of the accident, if any, in such manner as to show that the accident was not the result of the want of ordinary care or negligence on their part."
Instruction XV repeated the same rule substantially to the same effect as shown by instruction XIV.
Appellants contend that the rule of res ipsa loquitur has no application to the facts of this case, and that without the aid of that rule the evidence is not sufficient to sustain the verdict. We are unable to agree to the claim of counsel for respondent that because, according to the testimony, none of the other workmen on the house were above the ground floor on the day the accident occurred, therefore "in whatever position Goekler left the pipe there it must have remained until the plaintiff’s act of sawing or hammering dislodged it, causing it to fall." There is no evidence that the house was not accessible to intruders between half past 4 o’clock in the afternoon of the 27th when Goekler left the job, and the morning hour when the carpenters took up their day’s work on the 28th.
A recent decision by Division 2 of this court contains a brief and sufficient statement showing a limitation which is pertinent to the present case, in the application of the rule now under consideration. In that case plaintiff sought to recover damages for injuries to his automobile, while it was in possession of the defendant for the purpose of having the car washed. The court said:
"The cause of the injury in this case is undetermined. It may have been one over which the defendant had control, and it might have been one with which he had nothing to do. In order that the maxim res ipsa loquitur may apply it must first be shown that the person held liable had control and management of the thing in question. *** In the instant case, aside from the occurrence of the accident, there is no further showing of negligence on the part of the defendant, except the testimony above referred to that high motor speed could cause the damage which resulted. To hold the defendant liable under these circumstances would be to merely conjecture that he had conducted himself negligently and thus caused the injury. Where it is a matter of surmise only that the damage was due to a cause for which the defendant is liable the doctrine is inapplicable. O’Connor v. Mennie, 169 Cal. 217 [146 P. 674]." Scellars v. Universal Service Everywhere, 68 Cal.App. 252, 228 P. 879.
"No general rule can be laid down that the mere occurrence of an accident is or is not sufficient proof of actionable negligence; for each case must depend upon its own circumstances." Ingalls v. Monte Cristo Oil & Development Co., 23 Cal.App. 652, 661, 139 P. 97, 100.
In the case at bar, if the pipe as erected had fallen from the position where it was placed by the plumber, this might be taken as evidence that it had been insecurely fastened. Or. if there had been evidence that the plumber left any loose pipe not yet placed in the structure, its falling off might be taken as a fact sufficient to prove negligence in leaving such pipe where it probably might roll off. But here the only testimony showing that the plumber left the pipe on the premises fails to show that he left it anywhere except in a place from which, as is conceded, it could not fall. We are of the opinion that, in the absence of any other proof of facts which would lay a foundation for an inference of negligence on the part of defendants, the mere fact that the pipe fell, after being moved (as it must have been), by some person unknown, cannot be accepted as evidence that any act or omission of defendants caused the plaintiff’s injuries.
The judgment is reversed.
We concur: HOUSER, J.; YORK, J.