Opinion
Rehearing Granted July 21, 1927.
Appeal from Superior Court, City and County of San Francisco; T. I. Fitzpatrick, Judge.
Action for damages for personal injuries by F. H. Smith against Arthur Hollander and Hattie Hollander, his wife. Judgment for the defendant first named and for plaintiff and against the defendant second named, and the latter alone appeals. Reversed, and a new trial ordered. COUNSEL
Cooley & Gallagher, of San Francisco, for appellant.
Henry Eickhoff, Jr., and Gregory A. Harrison, both of San Francisco, for respondent.
OPINION
KOFORD, P. J.
Appellant, Hattie Hollander, appeals from a judgment awarding damages for personal injuries sustained by plaintiff in being struck by said appellant’s automobile. Her codefendant, Arthur Hollander, was granted a nonsuit.
The proof offered by the plaintiff was as follows: While walking westerly on the south sidewalk of Post street, plaintiff was struck and injured by appellant’s automobile, which ran up onto the sidewalk unawares from behind him. He did not see it approach nor hear any horn or warning signal. The only eyewitness for the plaintiff testified:
"I saw (the) automobile coming down Post street going west, and I saw it suddenly skid completely around and go right on the sidewalk and knock (plaintiff) down, and back up across the street and go on the other sidewalk and stop. A building stopped it. *** The street was wet."
Plaintiff’s wife testified to a telephone conversation with appellant, in which the latter said that she had lost control of her machine from Van Ness avenue to Buchanan street. This was all the testimony offered by plaintiff in chief concerning the manner of the accident. A motion for a nonsuit by appellant was denied. Apart from the application of the doctrine of res ipsa loquitur, the evidence warranted the submission of the case to the jury upon the question of whether defendant was negligent in not giving a suitable warning signal.
Defendant Arthur Hollander testified on behalf of appellant and himself that a misty rain had fallen for a period of about 15 minutes, and that the street was still wet at the time of the accident; that appellant’s automobile was traveling on Post street from Van Ness avenue at a speed of not more than 15 miles per hour in a straight course and in second gear; that about 100 feet east of Buchanan street the forward end of the automobile suddenly skidded towards the left, ran up onto the south or his left-hand sidewalk, and struck the plaintiff. Appellant’s testimony was substantially the same. She was the driver, and testified that, when the skidding commenced, there was nothing for her to do to bring the car back into control; that all she did was to hold onto the steering wheel. This was all the testimony for the defendants and appellant concerning the cause of the accident. There is therefore no direct proof of what particular act or omission on the part of the appellant, driver of the car, cause it to skid and run upon the sidewalk.
No contributory negligence was pleaded. Negligence was pleaded generally, and the plaintiff relied on the doctrine of res ipsa loquitur. The court instructed the jury upon this doctrine. Some of the instructions given, when read together, inform the jury that it may infer negligence by means of this doctrine without knowing the specific act or omission which constituted the negligence, if it should find from the evidence that defendant’s automobile ran upon the sidewalk and struck plaintiff unawares from behind. Appellant urges that, conceding the doctrine to apply to such facts, nevertheless we have here the additional fact of skidding on a wet street, which appears both from the case as a whole and from plaintiff’s testimony in chief. It is said that skidding may or may not be negligent, and for that reason skidding in and by itself furnishes no evidence or at least that the fact of skidding is a sufficient explanation for running upon the sidewalk so as to take the case out of the doctrine of res ipsa loquitur. Appellant cites authorities, including Berry on Automobiles (4th Ed.) § 231, to the effect that mere skidding is not evidence of negligence, and Bloom v. Allen, 61 Cal.App. 28, 214 P. 481, to the effect that skidding may or may not be negligent. This case also states, however, that skidding is not a defense.
That certain acts may or may not be negligent, however, is not determinative of the application of this doctrine. When an automobile leaves its accustomed place in the street, runs upon the sidewalk, and strikes a pedestrian, this, too, may or may not be negligent, depending upon the circumstances, and yet the doctrine has been held generally to apply under such facts (Berry on Automobiles [4th Ed.] § 405; Huddy on Automobiles [7th Ed.] § 512), and to similar situations (Bauhofer v. Crawford, 16 Cal.App. 676, 117 P. 931; Onell v. Chappell, 38 Cal.App. 375, 176 P. 370; Scheuermann v. Kuetemeyer, 186 Cal. 225, 199 P. 13). The test is not whether certain facts show that negligence exists in every such case or as a matter of law, but whether they show negligence ordinarily. The reason for the doctrine is also important. The one injured is from the nature of the case not in a position to know or prove the precise cause of the accident, whereas the defendant operating the thing causing the injury is in a position to know and should know or be able to explain it. 19 Cal.Jur. 704, § 123, "Negligence."
If mere skidding is not evidence of negligence, but running up onto the sidewalk is, then what is to be said of the two combined? Here the appellant’s automobile skidded diagonally across Post street, proceeding about 50 or 60 feet, and then up onto the sidewalk to where plaintiff was walking, striking him unseen from behind. It would be unusual if a person so injured would be in a position to prove the precise act or omission constituting the negligence causing the injury, and yet such occurrences do not usually take place in the absence of the driver’s negligence. One is compelled to conclude that, if the driver does not point out some cause of the injury and of the coming upon the sidewalk even by skidding which could not have been guarded against by the exercise of ordinary care under all the then known driving conditions, then the injuries in all probability resulted from negligence in handling the car. The burden of proving negligence is upon the plaintiff throughout the case. The doctrine of res ipsa loquitur assists him in carrying this burden by means of an inference founded on common knowledge and experience. From the nature and circumstances of the mishap, the jury may infer, where it applies, that the injuries were caused by some negligent act or omission of the driver, without proof of the precise act or omission constituting the negligence. Shearman & Redfield on Negligence, § § 58, 58a. It was proper for the court to instruct the jury upon the inference which might be drawn by means of this principle, for without it the jury would not be advised that the defendant was under the obligation of explaining the occurrence. For the same reason it was proper for the court to refuse defendant’s requested instructions VIII and IX upon the presumption of defendant’s freedom from negligence. The instructions should not have the effect, however, of informing the jury that the defendant is obliged to prove her freedom of negligence by a preponderance of evidence. The giving of instructions XV and XXI without giving defendant’s requested instruction No. III had this effect. "Burden of proof" and "burden of producing evidence" are not the same, although the use of the one expression instead of the other has been held not to be error. Cody v. Market Street Ry. Co., 148 Cal. 90, 82 P. 666; Worden v. Central Fireproof Bldg. Co., 172 Cal. 94, 155 P. 839. The defendant meets and therefore overcomes plaintiff’s prima facie case when she balances it evenly without proving absence of negligence by a preponderance of the evidence. Rathbun v. White, 157 Cal. 252, 107 P. 309; Scarborough v. Urgo, 191 Cal. 346, 347, 216 P. 584. One way for defendant to meet plaintiff’s prima facie case is to offer evidence tending to show that plaintiff’s injuries were the result of an unavoidable accident. While the evidence for defendant tending to show the accident unavoidable may be said to be weak, it is a case where reasonable minds might arrive at different conclusions, and it would not have been improper for the court to have given defendant’s requested instruction V.
The instructions given contain several indirect assumptions of fact which are assigned as error. This arises from expressions used without conditional qualification such as the usual "if any." One such expression is "caused by the negligence of the defendant" (in instruction XXII) and several such assumptions of fact are used in instruction XXIII, where the jury is instructed that "such damages include:
"Subdivision 1. The pain and suffering endured by the plaintiff, etc.
"Subdivision 2. Any loss sustained by plaintiff by reason of the fact that he has been unable to work up to the present time.
"Subdivision 3. All charges incurred and paid by the plaintiff by reason of the injury; *** and as well as such charges certain to be reasonably incurred in the future by reason of said injuries."
"Subdivision 6. The mental worry endured by the plaintiff up to the present time, due to his reasonable apprehension of future disability, which reasonable apprehension was the proximate result of his injuries.
"Subdivision 7. The permanent disability or lack of capacity for work in the future of the said plaintiff sustained by reason of his said injuries."
Where the fact can be said to be undisputed in the evidence, such assumption has been held not to constitute error. 24 Cal.Jur. 843, cases cited in notes 18 and 19. In several decisions it has been held that, where the assumption of fact is indirect and inferential, it may be considered as cured by other proper instructions, leaving the question to the jury. Ingalls v. Monte Cristo Oil Co., 23 Cal.App. 652, 656, 139 P. 97; Brinck v. Bradbury, 179 Cal. 376, 176 P. 690; Dawson v. Pacific Electric Ry. Co., 177 Cal. 268, 170 P. 603; Anderson v. Seropian, 147 Cal. 201, 216, 81 P. 521.
Under the facts proven and instructions given in this case, we perhaps could pass the assumption of fact in instruction XXII as cured by other instructions; and those in XXIII, subds. 1, 2 and 3, as being either not in dispute or as doubtful assumptions grammatically; but the facts assumed in subdivisions 6 and 7 are in dispute and are not cured by any other instruction given. The cautionary instruction on damages relates to damages in general and as a whole. Subdivision 7, besides assuming the disputed fact of permanent incapacity for work, is also erroneous for lacking the element of certainty of future detriment as required by Civil Code, § 3283. From an examination of the entire cause and evidence we are of the opinion that these errors must have influenced the determination of damages and is therefore reversible error.
The other grounds of appeal are not well taken. Some of the instructions use the expression "proper care" and "due care," but the instructions elsewhere, XII and XIV, instruct on the degree of care required of defendant and this overcomes the objection.
There was sufficient foundation for the telephone conversation with defendant. The witness testified that she called defendant’s telephone number and a person answered saying that she was the defendant. 22 Cor. Jur. 302. The defendant did not deny having had a telephone conversation, although she denied any admission.
Defendant’s demurrer to the complaint was properly overruled. The injuries detailed in the complaint were specific and detailed enough to advise the defendant of the character of proof to expect. Kuhns v. Marshall, 44 Cal.App. 588, 186 P. 632. A demurrer for uncertainty lies for what is said with an uncertain meaning and not for what is omitted. Callahan v. Broderick, 124 Cal. 83, 56 P. 782. No description of injuries can be so complete that nothing more can be added.
The judgment is reversed, and a new trial ordered.
We concur: NOURSE, J.; STURTEVANT, J.