Opinion
7-7-1959
Leonor GUERRA, Plaintiff and Appellant, v. CASA HAMILTON CORPORATION, a corporation, dba under fictitious firm names of Hotel El Cortez and El Cortez Motel, Handlery Hotels, Inc., a corporation, et al., Defendants and Respondents. * Civ. 5879.
Robert C. Thaxton, San Diego, for appellant. John W. McInnis, McInnis, Focht & Fitzgerald, San Diego, for respondents.
Leonor GUERRA, Plaintiff and Appellant,
v.
CASA HAMILTON CORPORATION, a corporation, dba under fictitious firm names of Hotel El Cortez and El Cortez Motel, Handlery Hotels, Inc., a corporation, et al., Defendants and Respondents. *
Rehearing Denied Aug. 4, 1959.
Hearing Granted Aug. 31, 1959.
Robert C. Thaxton, San Diego, for appellant.
John W. McInnis, McInnis, Focht & Fitzgerald, San Diego, for respondents.
SHEPARD, Justice.
This is an appeal from a judgment for defendant in an action for personal injuries alleged to have been suffered by the plaintiff as a result of the negligent operation of a passenger elevator operated by defendant.
Plaintiff, a divorcee, returned from her day's work as a restaurant manager at Tijuana to her home in San Diego, and had dinner with four other adult friends and relatives about 8:30 p. m. on Saturday, March 25, 1956. These five persons left home together about 9:30 or 10:00 p. m. in celebration of the wedding anniversary of two members of the party. They went to the Admiral Kidd Officers' Club, arriving somewhere between 10:00 and 11:00 p. m. The members of the party testified they each had one drink at that club. One witness on cross-examination said they had 'about one drink'. They left the Admiral Kidd Officers' Club shortly after midnight and together went directly to the El Cortez Hotel in San Diego, arriving at about 1:00 a. m. where they intended going to the Sky Room for further refreshments. The elevator operator was then at the clerk's desk and the party of five entered the empty elevator. The elevator operator entered behind them five or ten seconds later, closed the door, and started the elevator. From there on the evidence of detail is conflicting and hazy in many respects. It appears that plaintiff fell to the floor at about the time or immediately after the elevator started. The testimony is in conflict as to whether or not the elevator started with a jerk. Plaintiff says it did, but is not sure of the cause of her fall. She says she entered and started to turn to her right, which would place her left arm farthest from the door. One witness says she was in the middle of the elevator. She says she had on sleeves with large double cuffs. She says something jerked at her left cuff or sleeve. She does not know which caused her to fall. Some of the witnesses say the elevator did not start with a jerk.
The elevator operator says that he walked into the elevator behing the members of the party; that all were fully inside the elevator when he entered; that no one was close to the door; that he did not have to push anyone out of the way to reach the door handle by which he assisted the door to close and lock; and that he had used this elevator five years and it ran on this occasion as it always had. He testified that he first knew of the accident when plaintiff screamed; that he saw her on the floor and immediately stopped the elevator; that the elevator moved about one foot from momentum before it came to a dead stop; that he then returned the elevator a distance of about five feet to the lobby floor, from which it had started. Other witnesses gave varying versions of how the elevator moved, some saying it went entirely past the next upper floor then entirely back to the basement before arriving finally at the lobby floor. In any event, when it finally stopped plaintiff's arm was pulled out of the space between the elevator floor and the wall, an ambulance was called, and she was taken to the hospital. Her left arm suffered a communuted fracture with lacerations, and her left leg was broken.
The elevator safety engineer employed by the Division of Industrial Safety, State of California, whose duty it was to and who did inspect this particular elevator in the years before and after the accident, testified that the elevator had an area of 5 1/2 feet wide, four feet two inches in depth, with a carpet covering the floor. There is a stationary door three feet wide in the wall of the elevator shaft to permit entrance into the elevator shaft to permit does not of itself have a door. The closing handle and bar are horizontal when closed. The elevator cannot be moved under normal operations unless the door is closed tight. In the normal operations of the elevator the movement is automatic, it starts slowly and takes eight or nine feet to attain its maximum speed of 400 feet per minute, which is one-half the maximum allowable speed for elevators of this type. The elevator was inspected and found to comply with all of the safety regulations of the Division of Industrial Safety of the State of California. The mechanism worked smoothly and would not ordinarily throw anyone to the floor. The door takes three and one-half seconds to close. There are handrails inside the elevator. The distance between the front edge of the elevator floor and the door is about three inches, but the distance between the floor of the entrance to the elevator and the front edge of the floor on the elevator itself is one inch. After full trial, the jury returned a verdict for the defendant and plaintiff appeals.
Plaintiff first complains that the trial court committed prejudicial error in the giving of an instruction that 'the mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.' In considering this question it must be remembered that if we consider that plaintiff correctly and accurately described her position after entering the elevator, the jury may well have believed that it would have been physically impossible for the door or anything on the door to have caught her left sleeve. The witnesses were placed in a simulated 'elevator' floor area in front of the jury. This was visual to the jury but the record does not show the positions thus taken. The same procedure took place in plaintiff's demonstrating to the jury how she entered the elevator and started to turn around. The record does not reveal what position was thus shown to the jury. The jury was not required to absolutely accept the testimony that she had had only one drink at the Admiral Kidd Officers' Club. The testimony of some witnesses places her at the Club at 10:00 p. m. until after midnight. Others say the arrival was about 11:00 p. m. One witness says that they each had 'about one drink'. The evidence as to where they were at a given time and their position in the elevator, whether the elevator jerked or was smooth in operation, and whether it traveled up past the next floor and then back to the basement, is full of conflict. This conflict may alternatively have been the natural result of excitement, inattention, lack of observation, poor memory or, on the other hand, fuzzy thinking from too much alcohol. The plaintiff had worked all day previously and it was not unreasonable for the jury to have believed that the combination of fatigue and one or more drinks of an alcoholic beverage caused her to fall with her arm extended into the space of approximately three inches between the door and the elevator floor, and that that was the sole and only proximate cause of the accident. The movements of the other members of the party in the elevator easily could have jostled her, or she could have tripped in the act of turning. The jury saw and heard the witnesses. It was in their exclusive province to judge the weight and credibility of the testimony offered, and it was the trial court's prerogative to exercise the same function in passing on the motion for a new trial. In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689; Devens v. Goldberg, 96 Cal.App.2d 539, 215 P.2d 935.
The trial court not only gave the res ipsa loquitur instruction and the 'mere happening of an accident' instruction, but also gave the explanatory instruction by which it was made clear to the jury that the application of these instructions depended on the facts found by them to be true. The rule appears to be that where the uncontradicted evidence as a matter of law requires the giving of the res ipsa loquitur instruction, that is, where the evidence compels the sole conclusion that (1) the accident is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary action or contribution on the part of the plaintiff, then the giving of both instructions is error. Jensen v. Minard, 44 Cal.2d 325, 329[5a-b], 282 P.2d 7; Barrera v. De La Torre, 48 Cal.2d 166, 170, 308 P.2d 724; Alarid v. Vanier, 50 Cal.2d 617, 625, 327 P.2d 897.
However, where the jury, depending on how it weighs the testimony might reasonably conclude that factually one or more of the three elements above referred to having application to the res ipsa loquitur doctrine are missing, it is then proper to give the 'mere happening of an accident' instruction and the res ipsa loquitur instruction, plus an explanation of the relationship of the two and how they may be applied. In the case at bar this was done, and in view of the possible different views the jury might have reached as to what the facts were, we find no error and we see no reason for believing that the jury was confused, considering the instructions as a whole. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 157, 323 P.2d 391; Middleton v. Post Transportation Co., 106 Cal.App.2d 703, 705, 235 P.2d 855; Seedborg v. Lakewood Gardens Civic Ass'n, 105 Cal.App.2d 449, 455[6a-b], 233 P.2d 943. 'Where the evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur are present.' Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, 229, 252 P.2d 24, 29. 'The accident must not have been due to any voluntary act or contributing fault on the part of the plaintiff. As pointed out before, whether that situation existed was one for the jury to determine.' Rasmus v. Southern Pac. Co., 144 Cal.App.2d 264, 270[7b], 301 P.2d 23, 27.
Plaintiff further complains of the giving of certain other instructions and of the failure to give others. She does not quote them nor give any argument nor authorities in support of her position. Her citation of transcript pages in the clerk's transcript are erroneous as to some, so that we cannot identify them. As to those we can identify which were given, they were either erroneous statements of law or were covered by other instructions. In any event, we have read all of the instructions given as well as the transcript of the testimony in its entirety, and the jury appears to have been fully and fairly instructed on all necessary elements of the case.
The order denying a motion for judgment notwithstanding the verdict and the judgment are affirmed.
GRIFFIN, P. J., and MUSSELL, J., concur. --------------- * Opinion vacated Cal.Rptr. 330, 347 P.2d 674.