Opinion
Rehearing Denied March 24, 1932.
Hearing Granted by Supreme Court April 21, 1932.
Appeal from Superior Court, Los Angeles County; Charles L. Bogue, Judge.
Action by Eva M. St. Clair against Raymond P. McAlister, the Bay Cities Transit Company, and others. From a judgment for plaintiff, the Bay Cities Transit Company appeals.
Affirmed.
Superseding opinion in 5 P.2d 914.
COUNSEL
Bryce P. Gibbs, of Los Angeles, for appellant.
Fogel & Beman, of Los Angeles, and Orlando H. Rhodes, of Santa Monica, for respondent.
OPINION
IRA F. THOMPSON, J.
This is an appeal by the defendant corporation from a judgment rendered in an action for damages resulting from a collision between a passenger bus of the defendant corporation and an automobile.
The respondent was a passenger on the bus which was traveling in an easterly direction on Carlyle street at its intersection with Tenth street in the city of Santa Monica. The defendant Raymond P. McAlister drove into the bus from a northerly direction near the center of the intersection. The testimony discloses that this defendant, who was a minor, was negligent; that he did not see the bus until he was within three or four feet of it, because he was looking to the east. The testimony also indicates that the bus driver was looking straight ahead and neither to his right nor left while making the crossing, although he had stopped just west of the westerly curb line of Tenth street for the purpose of permitting a passenger to alight. Passengers on the car--one sitting in the rear seat--had seen the Ford automobile approaching for some distance before the impact. The chauffeur of the motor coach was not a witness. The court found that the accident was the result of the concurring negligence of appellant’s servant and McAlister.
The appellant asserts that the doctrine of res ipsa loquitur has no application in the present cause, and also, even though the doctrine may be made use of, the plaintiff has entirely failed to establish negligence on the part of the appellant. We are of the thought that these contentions are more properly stated in the form of two questions, as follows: (1) Is the case one to which the doctrine should be applied? (2) Did the defendant-appellant succeed in establishing that it was free from negligence? It has been held on several occasions that a collision between a common carrier of passengers and another vehicle constitutes an accident properly calling for the use of the rule invoked by the trial court in the present instance where the complaint is by an injured passenger. For example, in Osgood v. Los Angeles Traction Co., 137 Cal. 280, 70 P. 169, 170, 92 Am. St. Rep. 171, there was involved a collision between a street car on which plaintiff was a passenger and a car of another and different street railway company. The Supreme Court applied the doctrine, saying: "If the fault or negligence which was the proximate cause of the injury was attributable to some other vehicle under other and independent control, the defendant could so show, and that would be a good defense; but the presumption of defendant’s negligence arises regardless of the fact that the injury may have been caused by some other agency. The instruction did not shift the burden of proof of the whole case to defendant. It was nothing more than saying that, upon the particular issue, plaintiff has established negligence on defendant’s part, and defendant must meet this proof by ‘showing that the injury was without any negligence on its part.’ Nothing short of such proof would meet the proof of negligence of which the law presumes defendant guilty, and it was not error to so charge the jury." Again in the following cases collisions between a common carrier and another vehicle gave rise to the application of the doctrine at the instance of a passenger, the kind of vehicles being designated by us immediately following the citation of each authority: Housel v. P. Electric Ry. Co., 167 Cal. 245, 139 P. 73, 51 L. R. A. (N. S.) 1105, Ann. Cas. 1915C, 665, street car and hay wagon; Houghton v. Market-Street Ry. Co., 1 Cal.App. 576, 82 P. 972, street car and truck; Atkinson v. United Railroads of S. F., 71 Cal.App. 82, 234 P. 863, street car and automobile truck; Kilgore v. Brown, 90 Cal.App. 555, 266 P. 297, 299, passenger bus and automobile.
It is suggested by appellant, however, that since the plaintiff established that young McAlister was negligent in the operation of the Ford automobile she has waived application of the doctrine as against the appellant, and it is said that the authorities of Connor v. Atchison, Topeka & Santa Fe Ry. Co., 189 Cal. 1, 207 P. 378, 379, 26 A. L. R. 1462, and Marovich v. Central California Traction Co., 191 Cal. 295, 216 P. 595, 600, support this position. In this we think counsel is in error. The first-cited case states the rule that "where the plaintiff instead of relying upon a general allegation of negligence, sets out specifically the negligent acts or omissions complained of, the doctrine of res ipsa loquitur does not apply" because, as it is said, the "doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it, and that the plaintiff has no such knowledge and, therefore, is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence." The second authority makes only a slight change in the phraseology of the rule by declaring: "Where the plaintiff in his complaint makes no general allegation of negligence or no allegation of general negligence, instructions applying the doctrine of res ipsa loquitur should not be given." Almost the identical point here raised was presented to and considered by us in the case of Burke v. Dillingham, 84 Cal.App. 736, 258 P. 627, and we concluded that it was without merit for two reasons: First, because it is the established rule in this jurisdiction as intimated in the Marovich Case that where negligence is alleged generally and specific acts of negligence are also alleged, the plaintiff is entitled to have the instruction given even where the allegations appear in the same count (see cases there cited), and, second, because the plaintiff was entitled to introduce testimony to support his theory of the concurring negligence of the defendant against whom he could not invoke the rule. Virtually the same contention was again advanced in Kilgore v. Brown, supra, and the principle of the Dillingham Case affirmed. It was there said: "It would be difficult, indeed, to imagine how, under the rule as contended for by appellant, the case could ever be proved against the other defendant without forfeiting the benefit of the res ipsa loquitur rule as to the defendant carrying the plaintiff as a passenger." Appellant’s argument is fully answered by the plain logic of the cited cases.
We therefore turn to consider whether the appellant sustained the burden of proving that it was free from negligence. Primarily such a problem is for the trial court. However, the question may shortly be answered by pointing out that the driver of the bus was under the necessity of exercising the utmost or highest degree of care for the safety of his passengers. Under such degree of care, was he not bound to look both to his right and to his left at intersections to observe approaching vehicles? Again, it is to be noted that he stopped immediately before he entered the intersection. With all propriety it may be asked if, in the exercise of the proper degree of care, he could not have avoided a collision with an automobile which he should have seen had he not been looking straight ahead.
Judgment affirmed.
We concur: WORKS, P. J.; CRAIG, J.