Opinion
Rehearing Granted Jan. 7, 1932.
Appeal from Superior Court, Los Angeles County; Charles L. Bogue, Judge.
Action by Eva M. St. Clair against Raymond P. McAlister and others. From a judgment for plaintiff, the defendant the Bay Cities Transit Company appeals.
Reversed.
Rehearing granted; CRAIG, J., dissenting.
COUNSEL
Bryce P. Gibbs, of Los Angeles, for appellant.
Fogel & Beman, of Los Angeles, and Orlando H. Rhodes, of Santa Monica, for respondent.
OPINION
CRAIG, J.
The defendant corporation appealed from a judgment based upon findings of fact and conclusions of law in an action for damages sustained from a collision of automobiles.
While the respondent was a passenger in a public bus of the appellant, which was crossing an intersection in an easterly direction, an automobile driven by defendant Raymond P. McAlister in a southerly direction entered said intersection and struck the same, causing injury to the respondent. The instant suit was commenced against said corporation, McAlister, and his parents who had signed his application for a driver’s license, for the reason that he was a minor. Judgment was rendered against all defendants except said minor, as to whom the trial court entered a dismissal.
The testimony of all of the witnesses agreed upon the fact that the bus made a full stop at the intersection, and that it was proceeding at a lawful speed when struck on the left side, back of the front fender, by the car which approached from the north; that the driver of the bus was looking forward on his easterly course; that McAlister was also looking toward the east as he neared the intersection which the bus was crossing; and that neither driver was aware of the other’s car on the highway until the impact was inevitable.
The bus driver was not present to testify at the trial, though served with summons in another case which was submitted at the same time, upon the same evidence. From this fact and the public nature of the latter’s conveyance, the trial court concluded that appellant was liable as a matter of law. But we are cited to no authority which we view as justifying an inference of negligence from the fact that a public motor vehicle lawfully traveling a public thoroughfare was struck by another not driven with the degree of care required under the circumstances outlined. We are not confronted here with an instrumentality or agency necessarily inherently dangerous such as presented in Kenney v. Antonetti, 211 Cal. 336, 295 P. 341, wherein it appeared that the defendants permitted horses to stray upon a highway at night, unattended. Although the bus was under the management of a servant of the appellant, the evidence adduced all indicated an exercise of due care upon his part, and that the accident was such as in the ordinary course of things could not have been avoided by him, notwithstanding such care. There was direct and substantial evidence to this effect. We think it error to invoke the presumption that, in the absence of dereliction on the part of one situated as was McAlister here, an accident would ordinarily have occurred to another vehicle which was lawfully crossing his path without warning of his approach, since the trial court found from the evidence that McAlister was negligent. By a long and consistent line of decisions in this state, it has been held that, in applying the rule of res ipsa loquitur, it must appear that "the accident is such as in the ordinary course of things does not happen if those who have the management use proper care." Crooks v. White, 107 Cal.App. 304, 290 P. 497, 499. It has, further, been long established that mere possession and control of an automobile by a defendant entitled the court or jury to infer from other evidence, if there be such, that negligence in its management was the proximate cause of the alleged injury. Dowd v. Atlas T. & A. Service, 187 Cal. 523, 202 P. 870. But in none of the cases cited, nor in any underlying them, was the plaintiff relieved of the burden of establishing at least a prima facie case. When the facts are not such as to give rise to an inference of negligence from the inherent nature and character of the act causing the injury, the principle of res ipsa loquitur does not enter, and the plaintiff must establish liability by a preponderance of the evidence. As we have observed, the evidence in the instant case failed in these respects.
The judgment is reversed.
We concur: WORKS, P. J.; IRA F. THOMPSON, J.