Opinion
Hearing Granted by Supreme Court Aug. 6, 1928.
Appeal from Superior Court, Los Angeles County; Ira F. Thompson, Judge.
Action by Hattie L. Seney against the Pickwick Stages, Northern Division, Inc., and others, for damages for personal injuries. From a judgment for the defendants, plaintiff appeals. Affirmed.
See, also, 263 P. 299.
COUNSEL
Edwin S. Earhart, of Los Angeles, for appellant.
Warren E. Libby and B. P. Gibbs, both of Los Angeles, for respondent.
OPINION
HOUSER, J.
It appears that plaintiff, her husband, and their infant son were passengers on an automobile stage operated by the defendant company, and that, in an accident in which such auto stage was overturned, both the husband and the child were killed and plaintiff sustained personal injuries. In an action brought against the defendant for damages caused by the death of her husband, a judgment was rendered in favor of plaintiff, which judgment on appeal to this court was affirmed. Seney v. Pickwick Stages (Cal.App.) 255 P. 279. In the second action, plaintiff sought damages against the defendant caused by the wrongful death of her minor child, as well as for damages arising from the personal injuries sustained by plaintiff in said accident. In the latter action, judgment was rendered in favor of the defendant. It is from such judgment that the present appeal is taken. In the second action, the record discloses the fact that, with the exception of evidence necessary to establish the amount of damages, if any, sustained by plaintiff, the evidence therein was identical with that of the first case; it having been stipulated by the parties to the litigation that the transcript of the evidence in the first case might be introduced on the trial of the second case with the same force and effect as though the respective witnesses were actually present and personally testifying in the action on trial. It should be noted that the judge who presided at the trial of the first action did not preside at the trial of the second action.
Appellant concedes the point that ordinarily the law is established that, when sufficiently supported by the evidence, the findings of fact made by the lower court are conclusive. However, in this connection, appellant contends that the rule should not apply where the evidence upon which the finding of fact is made consists of a typewritten transcript of testimony given by witnesses in a former action. In the matter entitled Estate of Bell, 157 Cal. 528, 108 P. 497, in substance it is held that the credibility of witnesses, whether testifying orally or by affidavit, is for the trial court; and in the case of McElhaney v. McPherson, 12 Cal.App. 678, 108 P. 525, the same principle of law is announced in the statement to the effect that the appellate court is not concerned with the credit which is to attach to the testimony of the several witnesses in the trial of an action; and the fact that much of such testimony may be produced by depositions of such witnesses does not affect the rule. In the instant case, based upon the assumption that the findings of fact are supported by the evidence, this court is led to the conclusion that such findings of fact may not be disturbed on appeal.
In affirming the judgment in the first case between plaintiff and the defendant, among other things, this court held that, considering the facts therein, the doctrine known as res ipsa loquitur was applicable. Relying upon such declaration of law as affecting the facts in the first case and applying it to the identical state of facts in the instant case, appellant contends therefrom that, although the judgment in the trial court in the instant case was rendered in favor of the defendant, the duty devolves upon this court to order a reversal of such judgment and order a judgment in favor of plaintiff. But it is well-established law that the effect of the doctrine of res ipsa loquitur is merely that an inference of negligence on the part of the defendant is indulged; from which it results that a prima facie case only is established in favor of the plaintiff. Such a condition is not at all conclusive as to the negligence of the defendant, but is subject to rebuttal the same as though a prima facie case had been established by the testimony of witnesses regarding the manner in which the accident occurred. The law with reference thereto is succinctly stated in the case of Scarborough v. Urgo, 191 Cal. 341, 346, 216 P. 584, 586, where it is said:
"*** In this class of cases a prima facie case of negligence is made out by proving that the passenger was injured while being carried as such, and this being done, the carrier is called upon to rebut or overcome a presumption of negligence that follows from the mere fact of injury, by showing, if it can, the exercise of that degree of care which will excuse it under the rule of law above stated. Such a presumption is evidence in the case, but it has no greater or different effect than the testimony of witnesses, and in no degree changes the rule as to the burden of proof, viz., the burden of producing a preponderance of evidence. That burden does not shift from side to side on the trial of a case, but constantly remains with the party having the affirmative of the issue, who, in this case, is the plaintiff. All that is required of the defendant is to produce evidence sufficient to offset the effect of a plaintiff’s showing. He is not required to offset it by a preponderance of the evidence. Valente v. Sierra Ry. Co., 151 Cal. 534, 91 P. 481. As is said in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905 (see, also, Rose’s U.S. Notes), the doctrine of ‘res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in the question for the jury is whether the preponderance is with the plaintiff’ [citing cases]."
To the same effect, see 4 Cal.Jur. p. 980 et seq.; 19 Cal.Jur. p. 717 et seq.
It follows that from the circumstances present in the instant case a prima facie case of negligence on the part of defendant may have been properly inferred; nevertheless, if by the evidence introduced on behalf of the defendant the effect of such prima facie case was either overcome or the entire evidence left in such a condition that it did not preponderate in favor of plaintiff, the trial court was justified in rendering a judgment in favor of the defendant. Concededly, the evidence presented by the defendant had a tendency to establish the ultimate fact necessary to its defense-that the accident in question was occasioned by inevitable casualty, or by some other cause which human care and foresight could not have prevented. Throughout the trial of the action the burden of establishing the negligence of the defendant by a preponderance of the evidence rested with plaintiff. Relative to the negligence of the defendant, the question of the weight of the evidence on either side of the controversy, or, in order that plaintiff should be entitled to a judgment in the action, whether the evidence preponderated in favor of plaintiff, was solely for the determination of the judge of the trial court, and with whose conclusion, notwithstanding the affirmance by this tribunal of the judgment in the first action in favor of the plaintiff therein, this court is unauthorized to interfere. It would serve no useful purpose to here set forth the substance of the evidence; suffice it to state that an examination of the record discloses the fact that the evidence adduced on behalf of the defendant was substantial in its nature and effect. It is clear that in reaching the conclusion that plaintiff had failed to establish negligence of the defendant by a preponderance of the evidence the trial judge acted entirely within his province.
The judgment is affirmed.
We concur: CONREY, P. J.; YORK, J.