I cannot agree with the majority decision in this case for the reasons hereafter set forth. Among other instructions, the court gave the following:
"You are instructed that the driver of an automobile, who knows that a person is riding on the fender of his automobile or truck, is under the duty not to expose such person to danger or injury. The driver is under the duty of exercising reasonable care and caution toward such person and this is particularly true if it is a child. So, in this case, if you find from the evidence that the driver of the truck knew that the plaintiff, a boy of twelve years of age, was riding upon the fender of the car and the driver failed to use ordinary care and caution to protect the boy, and, as a result the plaintiff was injured, that such failure constitutes *Page 430 negligence and would be the proximate cause of the injury."
"From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the driver as alleged in the Complaint. The inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendants to rebut the inference by showing that the driver did in fact exercise ordinary care and diligence, or that the accident occurred without being proximately caused by any failure of duty on his part."
I believe that these instructions placed an unconscionable burden on the defendant. The first instruction above set out forecloses the jury's province of determining whether or not the failure of the driver of the truck to use ordinary care and caution was the proximate cause of the injury by precluding any consideration by the jury of concurrent negligence on the part of the plaintiff. Fuller v. Darnell, 100 Fla. 773, 129 So. 915, 74 A.L.R. 1. It was also erroneous in laying undue stress on any negligence that may have been shown as to the driver of the truck to the exclusion of all other evidence including plaintiff's concurring negligence, if any, proper to be considered by the jury in determining the issue of negligence and proximate cause. With reference to this instruction, the plaintiff-appellee used the following language in his brief:
". . . Where a minor is permitted to ride on the outside of a car and the driver negligently operates the car in such a manner as to cause injury, such facts constitute negligence and such negligence is the proximate cause of the injury. In the instructions complained of, the Court simply told the jury that if they *Page 431 found these facts to be true that, as a matter of law, the lack of due care would constitute negligence and would be the proximate cause of the injury."
The interpretation placed on this instruction by counsel for the plaintiff-appellee I believe to be correct. But I have never considered it to be the law that a trial court was permitted to instruct the jury as to what was the proximate cause of an accident. That was the issue to be determined by the jury. The instruction given by the court contradicts and nullifies any instruction that was given on behalf of the defense as to contributory negligence. In other words, the court told the jury, in effect, that, if it believed the driver of the truck did not use ordinary care and caution to protect the plaintiff, and as a result the plaintiff was injured, such failure constituted negligence and was the proximate cause of the injury. This instruction told the jury that any negligence on the part of the defendant contributing to the injury was the proximate cause of the injury, and entirely disregarded the jury's consideration of all the other evidence in the case and any negligence whatsoever at the time of the accident on behalf of the plaintiff which may have also been a concurring proximate cause of the injury. This particular instruction unduly emphasized a particular piece of the evidence. The holding in the case of Wiser v. Copeland,23 Ariz. 325, 331, 203 P. 565, 567, I believe to be applicable to the facts here. There the trial court was requested to instruct the jury upon a single phase of the evidence as to the defendant's responsibilities as follows:
"`You are instructed that the defendant had the legal right to drive his vehicle upon any part to the right of said McDowell road, whether the same was that part described in evidence as paved or unpaved, and you cannot find him guilty of negligence merely because you may find that he drove his machine in part upon the unpaved portion of said road' — and *Page 432 asserts that in the trial of the case below counsel for appellee `ever pointed his finger to the fact that at the time of the accident appellant was driving with his two right wheels off the pavement. It was to correct any erroneous impression which the jury might gather from the stress of that point that counsel asked for the declaration by the court of the substantive law relating to the respective rights and duties of users of the highway, to be met with refusal.'"
With reference to the refusal of the trial court to give the requested instruction, this court said:
"We think the instruction requested had a tendency to mislead the jury by treating appellant's rights without relation to the rights of appellee, and by laying undue stress on one fact in the case to the exclusion of all others proper to be considered in determining the vital issue of negligence. Appellant's legal right to drive his car on any part of McDowell road was not to be exercised without respect to the rights of others who might be lawfully using that highway. It was his duty, while driving his car, to exercise ordinary care to avoid injury to persons lawfully in the street, and the duty of such persons to exercise the same degree of care for their own safety. The law implies reciprocal obligations. Huddy on Automobiles (5th Ed.) § 414, and cases cited; 2 R.C.L., p. 1186.
"The gravamen of this action is that the appellant was guilty of negligence in his use of the road, to the injury of appellee. The jury might well have concluded that if the appellant had not been negligent in the driving of his car (in fact, partly upon the unpaved portion of the road) that the injuries would not have been inflicted. The instruction in such event, that negligence could not be predicated of the act of appellant merely because it took place in part upon the unpaved portion of the road, would inevitably tend to mislead and confuse the jury as to the precise legal bearing of the act of appellant thus singled out on the issue of negligence — an issue properly to be determined only upon consideration of all the circumstances of the case." *Page 433
In appellee's brief our attention is called to a number of cases holding that where a child is permitted to ride on the outside of the truck the operator must handle his truck with due care so as not to cause injury to the child. One of these isRook v. Schultz, 100 Or. 482, 198 P. 234, 235. It is interesting to note that in this case the court gave the following instruction, which I consider to be correct and which would have been applicable in the instant case:
"If you find the evidence in this case that the defendants were careless and negligent, in that they permitted plaintiff to ride on the running board of their motor truck, or they operated their motor truck at a high and dangerous rate of speed, and that as a direct and proximate result of such negligence, without negligence on the part of plaintiff, plaintiff was injured, in that event your verdict should be for the plaintiff, if the accident was not a pure accident and plaintiff was not guilty of contributory negligence. Of course that takes into consideration the fact that they knew he was riding on the truck."
The majority opinion disposes of the assignment of error predicated upon the instruction complained of by reciting that the trial court in other instructions fully instructed the jury on the law of contributory negligence. I contend that the law could have been expounded to the jury in one correct instruction as was done in the Rook v. Schultz case, supra, and the jury would have had all of the law expounded to it in the one instruction. When great numbers of instructions are given, who can say which one the jury heard or, having heard them all, which instruction was fully understood and retained in memory. It is assuming too much to presume that laymen can dissect contradictory instructions and harmonize them.
I am convinced that the trial court committed error in submitting the instruction on res ipsa loquitur. The doctrine of res ipsa loquitur was in no manner applicable *Page 434 to the facts in this case as will be more specifically pointed out hereafter. Not only was an instruction on the doctrine ofres ipsa loquitur as given not authorized, but the language of the instruction was a flagrant comment on the evidence. The instruction may be paraphrased as follows:
"From the happening of the accident involved in this case, as I believe it to have been established by the evidence, there arises an inference in the court's mind and in the law that the proximate cause of the occurrence was some negligent act on the part of the driver as alleged in the plaintiff's complaint."
It is prejudicial error for a court to instruct the jury on the doctrine of res ipsa loquitur when the facts in the case do not warrant such an instruction. Stewart v. Crystal Coca-ColaBottling Co., 50 Ariz. 60, 68 P.2d 952. Such an instruction compelled the defense to carry a burden not justified by the law applicable to the facts in this case, and directed the jury to make inferences against the defendant not permissible under the law in a negligence case of this nature.
Res ipsa loquitur means that the thing speaks for itself, just the telling of the accident warrants a presumption that the person who had the thing complained of under his control must have been guilty of negligence, and is a term used in a limited class of negligence cases, referring to the method of proof of general negligence as distinct from proof of specific negligence. The complaint charged specific negligence. The plaintiff was not in the dark as to the circumstances which caused the offending instrumentality to operate to his injury. Here is his allegation of negligence.
"In the operation of said truck on said garbage route in Miller Valley, on the afternoon of July 22, 1942, and while the plaintiff was so riding on the right front fender, the defendants, through their driver, drove and operated said truck at a high rate of speed *Page 435 and in such a negligent and unskillful manner as to cause said boy to be hurled from the fender to the roadway, under the truck, causing the two right wheels to pass over his body, from which he suffered the following injuries: Contusion of the brain, a compound comminuted fracture of the right femur close to the hip, a tear in the scrotum requiring several stitches, various contusions, lacerations and abrasions."
It is certainly unfair to place a defendant in the position whereby the invoking of such a doctrine takes the place of evidence, and permits the jury to infer that because an accident happened the defendant was guilty of negligence which was the proximate cause of the injury complained of, when all the facts in the case were available to plaintiff and testified to by him in minute detail.
The doctrine of res ipsa loquitur is predicated upon plaintiff's inability to specify the act of negligence which caused his injury and therefore permits him to rely upon the doctrine of res ipsa loquitur as a substitute for specific proof. 45 C.J., § 770, p. 1200.
The doctrine of res ipsa loquitur does not apply where there is no want of evidence as to the cause of the accident and the manner in which it occurred. Carlsen v. Diehl, 57 Cal. App. 731, 208 P. 150; Dorne v. Adams, 243 Mass. 438,137 N.E. 650; O'Donohue v. Duparquet, etc., Co., 67 Misc. 435,123 N YS. 193; Riggsby v. Tritton, 143 Va. 903, 129 S.E. 493, 45 A.L.R. 280 (p. 1206 C.J. 42). Was there want of any testimony in this case as to the cause of the accident and the manner in which it occurred? The plaintiff testified as follows:
". . . then he (the driver of truck) rounded the corner at Ruth and Whipple . . . Yes, sir; he went right close to the edge and he just missed the fence and I got quite a bit dizzy there . . . and then he swerved back to get on the right-hand side of the road and I was pitched in front of the car, in front of the truck." *Page 436
The doctrine of res ipsa loquitur is predicated upon the superior knowledge of the defendant as to the cause of the injury under the particular circumstances involved. A full and explicit statement of this portion of the rule appears in the text of Corpus Juris as follows:
"Sec. 773 (b) Superior Knowledge of Defendant as to Cause ofAccident. The reason or theory of the doctrine of res ipsaloquitur is based in part upon the consideration that, as the management and control of the agency which produced the injury is, under the circumstances to which the doctrine applies, exclusively vested in defendant, plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, while defendant, being more favorably situated, possesses the superior knowledge or means of information as to the cause of the accident, and should, therefore, be required to produce the evidence in explanation. Accordingly if the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged or if plaintiff himself has equal or superior means of information, the doctrine cannot be invoked." 45 C.J., § 773, p. 1205.
It will be noted from the principles enunciated in the foregoing section that, if the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged, or if the plaintiff himself has equal or superior means of information, the doctrine cannot be invoked.
Plaintiff in this case was the one who had the superior knowledge of what caused him to fall off the truck. There was nothing peculiar about the accident whereby the driver of the truck had any particular information as to how the accident happened that was not within the knowledge of plaintiff. His direct and positive testimony dispenses with the necessity for invoking the res ipsa loquitur doctrine. The treatment of this subject in Corpus Juris is as follows: *Page 437
"Sec. 774 (c) Absence or Unavailability of Direct Evidence ofNegligence. The doctrine of res ipsa loquitur, although it provides a substitute for direct proof of negligence where plaintiff is unable to point out the specific act of negligence which caused his injury, is a rule of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available. Accordingly it has been held that the rule not only does not relieve plaintiff from adducing any evidence within his power, but that, unless plaintiff has presented all the testimony reasonably within his power, he can derive no benefit from the doctrine. On the other hand, since the effect of the doctrine is that of a presumption or inference only, its application is conditioned, and rests essentially on the absence of direct evidence of defendant's negligence. Hence the presumption or inference arising from the doctrine cannot be availed of, or is overcome where plaintiff has full knowledge and testifies as to the specific act of negligence which is the cause of the injury complained of, or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant upon the occurrence clearly appear. . . ." 45 C.J., § 774, p. 1206.
This court in the case of Sawyer v. People's Freight Lines,Inc., 42 Ariz. 145, 22 P.2d 1080, considered the doctrine of res ipsa loquitur. It quoted with approval the statement of the rule as it appears in Section 768, 45 C.J., p. 1193, and then this language appears: "If the elemental facts enumerated in this rule are present, a plaintiff has established a primafacie case." (Italics mine.) This court in Pickwick StagesCorp. v. Messinger, 44 Ariz. 174, 36 P.2d 168, had occasion to consider the applicability of the doctrine of res ipsaloquitur. In this case it set forth some of the situations in which the rule is applicable, as train derailments, train accidents, rear-end collisions between stages engaged in carrying passengers, collisions between a passenger bus and another vehicle, etc. There has been no end of cases in which the rule has been applied. It has been applied to falling objects, *Page 438 objects flying out of train windows, fall of boom of hoisting apparatus, fall of machinery while being hoisted, fall of awnings, barrels, boards, planks, beams or other timber, fall of a box of goods being hoisted into a building, chimneys and stones falling from buildings, collapse of walls and ceilings in buildings, cornices falling, skylights falling, elevator accidents, collapse of stairs, fire escapes falling off buildings, and the bursting of bottles containing beverages. See 45 C.J., § 771, note, 21, p. 1201.
This court in the case of Stewart v. Crystal Coca-ColaBottling Co., 50 Ariz. 60, 68 P.2d 952, 954, again considered the question of the application of the doctrine ofres ipsa loquitur. With reference to the rule, this court said:
"The fact that the plaintiff may, in a proper case, rely on this rule does not mean, however, that he is excused from proving negligence, for there is no exception to the rule that one seeking damages for an injury caused thereby must establish that negligence by a preponderance of the evidence. It is true the purpose of the rule of res ipsa loquitur is to aid the plaintiff in a proper case in making this showing by supplying sufficient proof of negligence to require a defendant claiming that the accident did not occur through any fault of his to produce evidence to show this and take the case to the jury. (Quoting Sawyer v. People's Freight Lines, Inc., supra.) Instead of the law's demanding of the plaintiff the impossible in the matter of proof, facts about which he could not have any knowledge, it permits this rule to come to his rescue in certain cases and act as a substitute therefor. . . ." (Italics mine.)
I further disagree with the interpretation placed on the holding in the case of Pickwick Stages Corp. v. Messinger,supra, by the majority opinion, if the majority opinion intends that the rule of res ipsa loquitur is applicable as an aid in proving an ordinary negligence case whose facts do not warrant its use. The majority opinion reads as follows: *Page 439
"Further, the giving of this instruction under the issues in this case was in accordance with the rule which we adopted in Pickwick Stages Corp. v. Messinger . . . . We held in that case where specific negligence was alleged that the doctrine of resipsa loquitur was applicable as an aid to the proof of those specific facts."
It is my interpretation of the holding in the Pickwick Stages case that the doctrine of res ipsa loquitur is applicable as an aid to the proof of the specific facts alleged where thespecific facts fall within the purview of the doctrine of resipsa loquitur. In this behalf, I call attention to the interpretation of the opinion in the Pickwick Stages case made by the editors of West Publishing Co. The interpretation of these editors appears in the headnotes as published in Arizona Reports and in the Pacific Reporter, 36 P.2d 168, as follows:
"Allegation of specific acts of negligence restricts proof of both plaintiff and defendant to such alleged acts, but does not deprive plaintiff of benefit of the doctrine of res ipsaloquitur, where acts shown by the evidence would be within the rule under a complaint containing only a general allegation of negligence."
In the cases of Stewart v. Crystal Coca-Cola Bottling Co., Sawyer v. People's Freight Lines, and Pickwick Stages Corp. v. Messinger, supra, this court had occasion to review many cases treating of the doctrine of res ipsa loquitur. These three opinions of this court, together with its opinion in the case ofVerde, etc. R. Co. v. Stevenson, 22 Ariz. 188, 196 P. 164, all indicate that this court has had a very clear conception as to when the rule is applicable, namely, in a proper case. I submit that the majority opinion evidences that this court for the first time is confused as to the application of the rule. The case should be remanded with instructions to grant a new trial. *Page 440