Zentz v. Coca Cola Bottling Co., 247 P.2d 344 (Cal. 1952). · Go Syfert
Zentz v. Coca Cola Bottling Co., 247 P.2d 344 (Cal. 1952). Cases Citing This Book View Copy Cite
429 citation events (17 in the last 25 years) across 25 distinct courts.
Strongest positive: Olar v. Miller CA5 (calctapp, 2013-11-22)
Treatment trajectory · 1952 → 2026 · click a year to view as-of
1952 1989 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Olar v. Miller CA5
Cal. Ct. App. · 2013 · confidence medium
Code, § 646, subd. (b).) “The presumption arises when the evidence satisfies three conditions: ‘“(1) the [injury] must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”’” (Brown, supra, 4 Cal.4th at pp. 825-826.) “‘[T]he applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, th…
discussed Cited as authority (rule) Diaz v. Los Angeles County Metropolitan Transportation Authority
Cal. Ct. App. · 2009 · confidence medium
NOTES [1] Res ipsa loquitur "`means simply "the thing, or affair, speaks for itself," and, so speaking, authorizes the inference of negligence in the absence of a showing to the contrary.'" ( Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 440 [ 247 P.2d 344 ]; accord, Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825 [ 15 Cal.Rptr.2d 679 , 843 P.2d 624 ].) [2] Diaz sought the following "special instruction" based on language from Hardin v. San Jose City Lines, Inc. (1953) 41 Cal.2d 432 [ 260 P.2d 63 ]: "If and only in the event, you should find there was an accidental occurr…
cited Cited as authority (rule) Harder v. F.C. Clinton, Inc.
Okla. · 1997 · confidence medium
Giles v. City of New Haven, 228 Conn. 441 , 636 A.2d 1335, 1339 (1994); Hoven, supra note 9 at 384; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436 , 247 P.2d 344, 348 (1952).
examined Cited as authority (rule) Brown v. Poway Unified School District (6×)
Cal. · 1993 · confidence medium
Even granting the premise that the concept of exclusive control is somewhat flexible, and that “the plaintiff need not exclude all other persons who might possibly have been responsible” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [ 247 P.2d 344 ]), the evidence in this case still does not support the' necessary conclusion that “it is more probable than not that the injury was the result of the defendant’s negligence.” (Id., at p. 443, first italics added.) Accordingly, the Court of Appeal erred in holding that the evidence was sufficient to raise a presumption of …
discussed Cited as authority (rule) Gicking v. Kimberlin
Cal. Ct. App. · 1985 · confidence medium
(Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 442, 446 [ 247 P.2d 344 ]; Moreno v. Sayre (1984) 162 Cal.App.3d 116, 123 [ 208 Cal.Rptr. 444 ].) In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission.
discussed Cited as authority (rule) Kohler v. Aspen Airways, Inc.
Cal. Ct. App. · 1985 · confidence medium
F. Goodrich Co. (1953) 115 Cal.App.2d 221, 223 [ 252 P.2d 24 ] (automobile tire burst during inflation) and Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 458 [ 150 P.2d 436 ] (Coca Cola); Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 440 [ 247 P.2d 344 ] (Coca Cola); and Gordon v. Aztec Brewing Co. (1949) 33 Cal.2d 514, 523 [ 203 P.2d 522 ] (beer), for bursting bottle cases.
discussed Cited as authority (rule) Moreno v. Sayre
Cal. Ct. App. · 1984 · confidence medium
All of these matters have been treated as aids to help the courts in determining whether the accident was of such a nature that the injury was more probably than not the result of the defendant’s negligence.” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 446-447 [ 247 P.2d 344 ], italics added.) Invoking of the doctrine requires three factual conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence *124 of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not…
discussed Cited as authority (rule) Gradus v. Hanson Aviation, Inc.
Cal. Ct. App. · 1984 · confidence medium
The defendant, of course, should not be liable unless it appears from all the facts and circumstances that there is a sufficient causal connection between his conduct and the plaintiff’s injury, . . .” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 442-443 [ 247 P.2d 344 ].) Is this the kind of accident (the unsuccessful autorotation) which ordinarily does not occur in the absence of someone’s negligence?
discussed Cited as authority (rule) Hale v. Venuto
Cal. Ct. App. · 1982 · confidence medium
Although “the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant’s negligence appears to be the more probable explanation of the accident.” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [ 247 P.2d 344 ].) The fact that the plaintiff in the present case was also under the care, custody, and control of the hospital, nurses, anesthesiologists and other medical practitioners as well as defend…
discussed Cited as authority (rule) Fuller v. Sears, Roebuck & Co.
Cal. App. Dep’t Super. Ct. · 1982 · confidence medium
(Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443 [ 247 P.2d 344 ]; Roddis-craft, supra, 212 Cal.App.2d at p. 798 .) Further, where there is no question of fact as to the conditions that make res ipsa loquitur applicable, the court is justified in taking the issue of its applicability from the jury, as the trial court did in this case.
discussed Cited as authority (rule) Sanchez v. Bay General Hospital
Cal. Ct. App. · 1981 · confidence medium
At page 359, the Supreme Court stated: “It is settled law in this state that the ‘doctrine of res ipso loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. [Citations.]’ [Citation.] According to the classic and oft-repeated statement, there are three conditions for the application of the doctrine: “‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) …
discussed Cited as authority (rule) Stoddard v. Ling-Temco-Vought, Inc.
C.D. Cal. · 1981 · confidence medium
Colditz v. Eastern Airlines, Inc., 329 F.Supp. 691 (D.C.N.Y.1971); Zentz v. Coca Cola Bottling Co. of Fresno, 39 Cal.2d 436 , 247 P.2d 344, 349 (1952); Becker v. American Airlines, Inc., 200 F.Supp. 839 (S.D.N.Y.1961).
discussed Cited as authority (rule) Bolen v. Woo
Cal. Ct. App. · 1979 · confidence medium
In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied both upon common knowledge and the testimony of expert witnesses, and they have considered the circumstances relating to the accident in each particular case, such as the extent of control exercised by the defendant, the plaintiff’s own conduct, the likelihood of negligence by some third person, and in some situations, evidence that the defendant is better able *956 than the plaintiff to explain what happened.” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 446 [ 247 P.2d …
discussed Cited as authority (rule) Contreras v. St. Luke's Hospital
Cal. Ct. App. · 1978 · confidence medium
The doctrine is set forth in its most simple and direct form in Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 446 [ 247 P.2d 344 ], where the court said: “[A]s a general rule, res ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that defendant is probably the person who is responsible.
discussed Cited as authority (rule) Levy-Zentner Co. v. SOUTHERN PAC. TRANSPORTATION
Cal. Ct. App. · 1977 · confidence medium
In making this determination, the jury may consider common knowledge, the testimony of expert witnesses, and the circumstances relating to the particular accident at issue (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ]).
cited Cited as authority (rule) Newing v. Cheatham
Cal. · 1975 · confidence medium
(Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 446 [ 247 P.2d 344 ].) It need not be concluded that negligence is the only explanation of the accident, but merely the most probable one.
discussed Cited as authority (rule) Pappas v. Carson
Cal. Ct. App. · 1975 · confidence medium
Where such other causes are in the first instance equally probable, there must be evidence that will permit the jury to eliminate them.” (Prosser, Torts (4th ed. 1971) pp. 218-219.) “[T]he doctrine is not applicable where it is ‘at least equally probable that .the accident was caused by some fault ... for which defendants were not liable.’ ” (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 443 [ 247 P.2d 344 ].) Where the only reasonably probable causes of the injury are traced solely to conduct of the defendant and a third party, a res ipsa loquitur instruction is properly refused i…
examined Cited as authority (rule) Coyne v. John S. Tilley Co. Inc. (3×)
Mass. · 1975 · confidence medium
In drawing this inference and determining that there is a balance of probabilities in favor of negligence, the trier of fact must be able to find, either from common knowledge (Graham v. Badger, 164 Mass. 42, 47 [1895]; Zentz v. Coca Cola Bottling Co. of Fresno, 39 Cal. 2d 436, 442 [1952]) or from expert testimony (James v. Boston Elev.
discussed Cited as authority (rule) Rimmele v. Northridge Hospital Foundation (2×)
Cal. Ct. App. · 1975 · confidence medium
Code, § 646.) In California, the doctrine is applicable where: (1) the injury is of a kind which ordinarily does not occur in the absence of negligence; (2) the injury is caused by an instrumentality within the exclusive control of the defendant or group of defendants; and (3) the injury was not due to any voluntary action or contribution by the plaintiff. ( Ybarra v. Spangard, 25 Cal.2d 486, 489 [ 154 P.2d 687 , 162 A.L.R. 1258 ].) Stated less mechanically, a plaintiff suing in a personal injury action is entitled to the benefit of res ipsa loquitur when: "the accident is of such a nature th…
discussed Cited as authority (rule) Bedford v. Re (2×)
Cal. · 1973 · confidence medium
"The requirement of control is not an absolute one. [T]he plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident." ( Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [ 247 P.2d 344 ].) Thus, in cases where the defendant has relinquished control of the instrumentality we have held that the plaintiff may raise the inference that it was defective when it left defendant's possession by demonstrating that it has not been improperly handled or its condition otherwi…
discussed Cited as authority (rule) Tobler v. Chapman
Cal. Ct. App. · 1973 · confidence medium
(See Di Mare v. Cresci (1962) 58 Cal.2d 292, 299 [ 23 Cal.Rptr. 772 , 373 P.2d 860 ]; Faulk v. Soberanes (1961) 56 Cal.2d 466, 470 [ 14 Cal.Rptr. 545 , 363 P.2d 593 ]; Guerra v. Handlery Hotels, Inc. (1959) 53 Cal.2d 266, 271 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ]; Phillips v. Noble (1958) 50 Cal.2d.163, 167 [ 323 P.2d 385 ]; Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [ 247 P.2d 344 ]; La Porte v. Houston (1948) 33 Cal.2d 167, 170 [ 199 P.2d 665 ]; Olson v. Whitthorne & Swan (1928) 203 Cal. 206, 208-209 [ 263 P. 518 , 58 A.L.R. 129 ]; Harrison v. Sutter Street Ry.
discussed Cited as authority (rule) Bardessono v. Michels
Cal. · 1970 · confidence medium
(Stats. 1970, ch. 69, § 1.) 5 In Ybarra v. Spangard, supra, 25 Cal.2d 486, 489, the court established three conditions for the application of the res ipsa doctrine: “ ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Prosser, Torts, p. 295.)” More recently in Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 446 [ 247 P.2d…
discussed Cited as authority (rule) Putensen v. Clay Adams, Inc.
Cal. Ct. App. · 1970 · confidence medium
(Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 443 [ 247 P.2d 344 ].) Accordingly, the control element is satisfied if the defendant had control of the instrumentality at the time of the alleged negligent act, although not at the time of the accident provided the plaintiff produces evidence which is sufficient to show that the instrumentality was not mishandled or that its condition had not been changed after it left the defendant’s possession.
discussed Cited as authority (rule) Duncan v. Queen of Angels Hospital
Cal. Ct. App. · 1970 · confidence medium
(Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ].) The rule has no application where both parties were in the exercise of an equal right and each are chargeable with the same degree of care.
examined Cited as authority (rule) Gotcher v. Metcalf (4×)
Cal. Ct. App. · 1970 · confidence medium
Reprint 299.) [1] Our case is not within any of the recognized extensions of the doctrine. (6) We point out further that a res ipsa loquitur instruction is properly refused unless the evidence supports a preliminary determination by the court that "in the light of past experience" (1) the accident was of the type which ordinarily does not happen unless someone was negligent, and (2) it is more likely than not that the accident was caused by the defendant's negligence. ( Faulk v. Soberanes, 56 Cal.2d 466, 470 [ 14 Cal. Rptr. 545 , 363 P.2d 593 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, …
discussed Cited as authority (rule) Albers v. Greyhound Corp. (2×)
Cal. Ct. App. · 1970 · confidence medium
Res Ipsa Loquitur “Res ipsa loquitur, when translated, ‘means simply “the thing, or affair, speaks for itself,” and, so speaking, authorized the inference of negligence in the absence of a showing to the contrary.’ (O’Connor v. Mennie, 169 Cal. 217, 223 . . . .) There is, of course, no magic in the Latin phrase, ...” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 440 [ 247 P.2d 344 ].
discussed Cited as authority (rule) Albers v. Greyhound Corp. (2×)
Cal. Ct. App. · 1970 · confidence medium
Plaintiff seeks recovery not only for the wound inflicted by the cutters, but also for a disabling condition resulting from a hernia and other complications. *471 Res Ipsa Loquitur (3) " Res ipsa loquitur, when translated, `means simply "the thing, or affair, speaks for itself," and, so speaking, authorized the inference of negligence in the absence of a showing to the contrary.' ( O'Connor v. Mennie, 169 Cal. 217, 223 ....) There is, of course, no magic in the Latin phrase, ..." ( Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 440 [ 247 P.2d 344 ].
discussed Cited as authority (rule) Preissman v. Ford Motor Co.
Cal. Ct. App. · 1969 · confidence medium
(In support thereof, Ford cites, inter alia, Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 442 [ 247 P.2d 344 ]; and La Porte v. Houston, 33 Cal.2d 167, 169-170 [ 199 P.2d 665 ].) Ford argues that there is no evidence that the automobile herein was in the possession or control of Ford after the date (April 4, 1962) when it was sold, and “no evidence that the car was not actually in Park Lock whenever the driver placed the selector in that position at any time between that date and the happening of the accident on September 28, 1962, nor at any time thereafter”; and therefore “It cannot…
discussed Cited as authority (rule) Romig v. Goodyear Tire & Rubber Co.
Cal. Ct. App. · 1969 · confidence medium
(See Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 440-447 [ 247 P.2d 344 ]; Erickson v. Sears, Roebuck & Co., supra, 240 Cal.App.2d 793, 797-798 ; Shain, Res Ipsa Loquitur: Presumptions and Burdens of Proof (1945) 432-433.) The doctrine has no relevance to proof of the other elements of a cause of action based upon negligence.
discussed Cited as authority (rule) Davis v. Safeway Stores, Inc.
Cal. Ct. App. · 1969 · confidence medium
(See Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444 [ 247 P.2d 344 ]; Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517-518 [ 203 P.2d 522 ]; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458-459 [ 150 P.2d 436 ]; Witkin, Cal. Evidence (2d ed. 1966), Burden of Proof and Presumptions, pp. 243-244, § 284; 7 Stan.L.Rev. 480, 491.) As previously stated, two of the requested instructions made no distinction between defendant Royal Crown and defendant Safeway, and said instructions appeared to apply equally to both defendants.
discussed Cited as authority (rule) Allen v. Leonard
Cal. Ct. App. · 1969 · confidence medium
(Citing cases.) In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.” (See also Faulk v. Soberanes, 56 Cal.2d 466, 470 [ 14 Cal.Rptr. 545 , 363 P.2d 593 ]; Wolfsmith v. Marsh, 51 Cal.2d 832, 835 [ 337 P.2d 70 , 82 A.L.R.2d 1257 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 442-447 [ 247 P.2d 344 ]; Inouye v. Black, 238 Cal.App.2d 31, 33 [ 47 Cal.Rptr. 313 , 14 A.L.R.3d 961 ]; 82 A.L.R.2d 1262 ; 162 A.L.R. 1265 .) In the present ease it has not been proven that there …
discussed Cited as authority (rule) Van Zee v. Bayview Hardware Store
Cal. Ct. App. · 1968 · confidence medium
(See Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ].) We cannot tell whether the judge’s reason was based on his estimation of Washington’s testimony only, or on his appraisal of the other circumstances of the case as well.
discussed Cited as authority (rule) Anderson v. Jones (2×)
Cal. Ct. App. · 1968 · confidence medium
F. Goodrich Co. (1953) 115 Cal.App.2d 221 , 226-229 and 233 [ 252 P.2d 24 ].) “According to the classic statement and as plaintiff’s first proposed instruction correctly declares, there are three conditions for the application of the doctrine of res ipsa loquitur : ‘ “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ (Ybarr…
discussed Cited as authority (rule) Casetta v. United States Rubber Co.
Cal. Ct. App. · 1968 · confidence medium
See also Seeley v. Combs, supra, 65 Cal.2d 127, 133 ; Leonard v. Watsonville Community Hospital, supra, 47 Cal.2d 509, 514 ; Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 442-444 [ 247 P.2d 344 ]; Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 457-458 [ 150 P.2d 436 ]; Honea v. City Dairy, Inc. (1943) 22 Cal.2d 614, 616-617 [ 140 P.2d 369 ]; Druzanich v. Criley (1942) 19 Cal.2d 439, 444 [ 122 P.2d 53 ]; Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639, 647 ; Cordova v. Ford (1966) 246 Cal.App.2d 180, 184 [ 54 Cal.Rptr. 508 ]; Reynolds v. Natural Gas Equipment, Inc., supra, 1…
discussed Cited as authority (rule) Vistica v. Presbyterian Hospital & Medical Center of San Francisco, Inc.
Cal. · 1967 · confidence medium
The jurors were also instructed that they were permitted to draw an inference of defendant’s negligence if they found that Lorraine's death was “caused while she was exclusively under the physical care or control of the defendant hospital in the psychiatric ward as a patient and was not due to any voluntary action or contribution by Lorraine. ’ ’ The requirement that the plaintiff account for his own conduct before it can be said that the injury was more probably than not the result of the defendant’s negligence was explained in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444-445…
discussed Cited as authority (rule) Corcoran v. Banner Super Market, Inc.
NY · 1967 · confidence medium
In Zentz v. Coca Cola Bottling Co. of Fresno ( 39 Cal. 2d 436, 444 [1952]) the court properly observed that the exclusive control requirement does not necessitate such control at the time of the accident.
discussed Cited as authority (rule) Dennis v. Carolina Pines Bowling Center
Cal. Ct. App. · 1967 · confidence medium
However, “a plaintiff may properly rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause.” (Zentz v. Coca Cola Bottling Co., 39 Cal. 2d 436, 444-445 [ 247 P.2d 344 ].) The extent to which a plaintiff must account for his own conduct in cases of this kind is explained by Prosser in his oft-cited article Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 201-202, as follows: “ [T]he plaintiff’s mere possession of a chattel which injures him does not prevent a res ipsa loquitur case …
discussed Cited as authority (rule) Cordova v. Ford
Cal. Ct. App. · 1966 · confidence medium
It also refused to give as requested by plaintiff qualified instructions on the doctrine of res ipsa loquitur in the form of BAJI No. 206-A (Rev.) and No. 206 (Rev.). 3 *184 According to the classic statement and as plaintiff’s first proposed instruction correctly declares, there are three conditions for the application of the doctrine of res ipsa loquitur: “ ‘(1) the accident must be of a ldnd which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have …
discussed Cited as authority (rule) Crawford v. County of Sacramento
Cal. Ct. App. · 1966 · confidence medium
(Fowler v. Seaton, 61 Cal.2d 681, 686 [ 39 Cal.Rptr. 881 , 394 P.2d 697 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446-447 [ 247 P.2d 344 ].) The plaintiff need not produce evidence excluding all possible causes other than the defendant’s negligence.
discussed Cited as authority (rule) Inouye v. Black
Cal. Ct. App. · 1965 · confidence medium
(Fowler v. Seaton, 61 Cal.2d 681, 686 [ 39 Cal.Rptr. 881 , 394 P.2d 697 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446-447 [ 247 P.2d 344 ].) The plaintiff need not produce evidence excluding all possible causes other than the defendant’s negligence.
discussed Cited as authority (rule) Walker v. Fresno Distributing Co.
Cal. Ct. App. · 1965 · confidence medium
Generally, that doctrine applies ‘where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence *847 by someone and that the defendant is probably the person who is responsible.’ (Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ]; accord Faulk v. Soberanes, 56 Cal.2d 466, 470 [ 14 Cal.Rptr. 545 , 363 P.2d 593 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ].) Conversely, where no such weight of probabilities can be found, res ipsa loquitur does not apply.
discussed Cited as authority (rule) Greening v. General Air-Conditioning Corp.
Cal. Ct. App. · 1965 · confidence medium
All of these matters have been treated as aids to help the courts in determining whether the accident was of such a nature that the injury was more probably than not the result of the defendant’s negligence.” (Zentz v. Cola Cola Bottling Co., 39 Cal.2d 436, 446-447 [ 247 P.2d 344 ].) Fire damage cases have no peculiar characteristics isolating them from res ipsa loquitur.
discussed Cited as authority (rule) Quintal v. Laurel Grove Hospital (2×)
Cal. · 1964 · confidence medium
Generally, that doctrine applies `where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.' ( Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal. Rptr. 337 , 372 P.2d 97 ]; accord Faulk v. Soberanes, 56 Cal.2d 466, 470 [ 14 Cal. Rptr. 545 , 363 P.2d 593 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ].) ...
discussed Cited as authority (rule) Keena v. Scales
Cal. · 1964 · confidence medium
The doctrine may be invoked whether or not the defendant was in a better position than the plaintiff to explain what occurred so long as it appears more probable than not that the injury resulted from the defendant’s negligence. [Citations.]” (See also Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498, 501 [ 15 Cal.Rptr. 161 , 364 P.2d 337 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 445 [ 247 P.2d 344 ].) There is little dispute that, in the instant case, the accident probably occurred as the result of someone’s negligence.
examined Cited as authority (rule) Fowler v. Seaton (4×)
Cal. · 1964 · confidence medium
Generally, that doctrine applies “where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.” (Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ]; accord Faulk v. Soberanos, 56 Cal.2d 466, 470 [ 14 Cal.Rptr. 545 , 363 P.2d 593 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ].) Conversely, where no such weight of probabilities can be found, res ipsa loquitur does not apply.
discussed Cited as authority (rule) Poulsen v. Charlton (2×)
Cal. Ct. App. · 1964 · confidence medium
(Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 443 [ 247 P.2d 344 ].) Thus, where the plaintiff sues only one of the parties who might have caused the injury res ipsa loquitur cannot be relied upon.
discussed Cited as authority (rule) Mahoney v. Hercules Powder Co.
Cal. Ct. App. · 1963 · confidence medium
(Borenkraut v. Whitten, 56 Cal.2d 538, 546 [ 15 Cal.Rptr. 635 , 364 P.2d 467 ].) As stated in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 447 [ 247 P.2d 344 ]: “It is not necessary that plaintiff eliminate every remote possibility of injury to the bottle after defendant relinquished control,...” Defendant finally contends that plaintiffs failed to establish the third condition, i.e., that the accident was not due to any voluntary action or contribution on the part of Mahoney.
discussed Cited as authority (rule) Houser v. Floyd
Cal. Ct. App. · 1963 · confidence medium
Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that it did, in fact, exercise ordinary care and diligence or that the accident occurred without being proximately caused by any failure of duty on its part.” (Italics supplied.) * Conditions for the application of res ipsa loquitur are authoritatively summarized in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [ 247 P.2d 344 ] : “ ... res ipsa loquitur applies where the accident is of such a nature that it can be said,…
discussed Cited as authority (rule) Exploration Drilling Co. v. Heavy Transport, Inc.
Cal. Ct. App. · 1963 · confidence medium
The doctrine is not applicable unless a plaintiff estab *404 lishes that it was more probable than not that a defendant’s negligence caused the casualty (Di Mare v. Cresci, 58 Cal.2d 292, 299 [ 23 Cal.Rptr. 772 , 373 P.2d 860 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 443 [ 247 P.2d 344 ]).
cited Cited as authority (rule) Sociedad de Gananciales v. Presbyterian Hospital
prsupreme · 1963 · confidence medium
Kirchberger v. Gover, 76 D.P.R. 907, 912, 913 (1954); Cintrón v. A. Roig Sucrs., 74 D.P.R. 1028, 1086, 1037 (1953); Zentz v. Coca Cola Bottling Co. of Fresno, 247 P.2d 344, 346-350 (Cal. 1952). 3.
Retrieving the full opinion text from the archive…
MARY E. ZENTZ, Respondent,
v.
COCA COLA BOTTLING COMPANY OF FRESNO (A Corporation), Appellant
S. F. 18456.
California Supreme Court.
Aug 6, 1952.
247 P.2d 344
1952 Cal. LEXIS 273
Ray W. Hays and James N. Hays for Appellant., L. Kenneth Say for Respondent.
Gibson.
Cited by 176 opinions  |  Published
GIBSON, C. J.

Plaintiff was injured by the explosion of a bottle of Coca Cola which had been bottled and delivered to her restaurant by defendant. She brought this action for damages, and defendant appeals from a judgment upon a jury verdict in her favor.

Soft drinks were kept in the restaurant in a cooler which stood about waist high and opened from the top. The cooler was empty on the day of the accident when the driver of[*440] defendant’s truck delivered a number of cases of Coca Cola. He placed the bottles in the cooler four at a time until it was filled, and while he was doing this one bottle broke when he struck it against another. No one else handled the bottles from the time they were loaded onto the truck until they were placed in the cooler.

About an hour after the delivery plaintiff reached into the cooler, and, before she touched any of the bottles, one exploded. Three customers testified that they heard a “pop,” that plaintiff screamed, and that they saw her clutching her right arm, which had been severely cut.

Defendant’s plant manager testified that, prior to the accident, the only tests defendant made to discover defective bottles were visual inspections which took place as the bottles were moved along a conveyor belt at a speed in excess of 150 a minute while they were being washed and filled. He also testified that bottles were sometimes mishandled by defendant’s employees and that as a result bottles occasionally broke.

The principal question in this case is whether it was proper to give an instruction to the jury that from the happening of the accident, as established by the evidence, there arose an inference that the proximate cause of the occurrence was some negligent conduct on the part of defendant. This, of course, depends upon whether, under the facts of this case, plaintiff was entitled to the benefit of the doctrine of res ipsa loquitur.

An increasing number of the cases coming to this court involve res ipsa loquitur, and this may be due not only to the fact that the doctrine is often difficult to apply but also to confusion which has arisen because the opinions have not always used the same language in stating the rule. Res ipsa loquitur, when translated, “means simply ‘the thing, or affair, speaks for itself, ’ and, so speaking, authorizes the inference of negligence in the absence of a showing to the contrary.” (O’Connor v. Mennie, 169 Cal. 217, 223 [146 P. 674] ; see, also, Ales v. Ryan, 8 Cal.2d 82, 98 [64 P.2d 409]; Michener v. Hutton, 203 Cal. 604, 607 [265 P. 238, 59 A.L.R. 480].) There is, of course, no magic in the Latin phrase, and its use as a convenient label for the doctrine may have resulted in some of the confusion which is found in the statements of the principles upon which the rule is based.

The statement of the doctrine which, with some variation, was used in many of the earlier California decisions appears[*441] in Michener v. Hutton, 203 Cal. 604, 607 [265 P. 238, 59 A.L.R. 480], where it was said: “The courts of this state have long since adopted the rule as expressed in 1- Shearman & Redfield on Negligence, sixth edition, page 132, viz.: ‘Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the. management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of proper care.’ [Citations.]" * (See, also, Dixon v. Pluns (1893), 98 Cal. 384, 389 [33 P. 268, 35 Am.St.Rep. 180, 20 L.R.A. 698] ; Judson v. Giant Powder Co., 107 Cal. 549, 556 [40 P. 1020, 48 Am.St.Rep. 146, 29 L.R.A. 718]; McCurrie v. Southern Pac. Co., 122 Cal. 558, 561-562 [55 P. 324] ; Chico Bridge Co. v. Sacramento Tr. Co., 123 Cal. 178 [55 P. 780] ; Harrison v. Sutter Street Ry. Co., 134 Cal. 549, 550 [66 P. 787, 55 L.R.A. 608]; Rowe v. Such, 134 Cal. 573, 574-575 [66 P. 862, 67 P. 760] ; Kahn v. Triest-Rosenberg Cap Co., 139 Cal. 340, 344 [73 P. 164] ; Cody v. Market St. Ry. Co., 148 Cal. 90, 94 [82 P. 666]; Valente v. Sierra Ry. Co., 151 Cal. 534, 538 [91 P. 481] ; Housel v. Pacific Elec. Ry. Co., 167 Cal. 245, 247 [139 P. 73, Ann.Cas. 1915C 665, 51 L.R.A.N.S. 1105]; O’Connor v Mennie, 169 Cal. 217, 223 [146 P. 674]; Hernandez v. Southern Calif. Gas Co., 213 Cal. 384, 388 [2 P.2d 360]; Godfrey v. Brown, 220 Cal. 57, 64 [29 P.2d 165, 93 A.L.R. 1072] ; Ales v. Ryan, 8 Cal.2d 82, 95 [64 P.2d 409].) Other cases have used different language in setting forth the rule and have referred to “control” rather than “management” and to what “ordinarily would not have occurred” instead of to what “in the ordinary course of things does not happen.” (Olson v. Whitthorne & Swan, 203 Cal. 206, 208 [263 P. 518, 58 A.L.R. 129] ; see, also, Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 457-458 [150 P.2d 436] ; cf. Hinds v. Wheadon, 19 Cal.2d 458-461 [121 P.2d 724].)

It was stated in Judson v. Giant Powder Co., 107 Cal. 549,[*442] 556 [40 P. 1020, 48 Am.St.Rep. 146, 29 L.R.A. 718], that the doctrine is based on “the experience of the past” and the theory that what “has happened in the past, under the same conditions, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown.” In another early case it was said: “The bed-rock of this principle ... is that of probabilities. ...” (Harrison v. Sutter Street Ry. Co., 134 Cal. 549, 552 [66 P. 787, 55 L.R.A. 608].) Since the decision of the Judson case in 1895, the words “probably,” “probable,” “probability” and “probabilities” have been repeatedly used in this connection, both as part of the rule and as the basic reason, or one of the reasons, for it. (Harrison v. Sutter Street Ry. Co., supra; Osgood v. Los Angeles etc. Co., 137 Cal. 280, 282 [70 P. 169, 92 Am.St.Rep. 171]; Smith v. O’Donnell, 215 Cal. 714, 722 [12 P.2d 933]; Godfrey v. Brown, 220 Cal. 57, 66 [29 P.2d 165, 93 A.L.R. 1072] ; Honea v. City Dairy, Inc., 22 Cal.2d 614, 617, 620, 621 [140 P.2d 369] ; Leet v. Union Pac. R. Co., 25 Cal.2d 605, 619-621 [155 P.2d 42, 158 A.L.R. 1008]; LaPorte v. Houston, 33 Cal.2d 167, 169 [199 P.2d 665] ; Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517 [203 P.2d 522] ; Cavero v. Franklin etc. Benev. Soc., 36 Cal.2d 301, 312-314 [223 P.2d 471] ; Raber v. Tumin, 36 Cal.2d 654, 659-661 [226 P.2d 574].) In the LaPorte case, 33 Cal.2d at page 169, we said, after assuming that defendants were in control at the time of the accident, that “the applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of their [defendants’] negligence. [Citations.] ‘Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply. ’ ” In determining whether such a probability exists with regard to a particular occurrence, the courts have relied both upon common knowledge and the testimony of expert witnesses. (See, for example, Cavero v. Franklin etc. Benev. Soc., 36 Cal.2d 301, 309 [223 P.2d 471] ; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 459, 460 [150 P.2d 436] ; Juchert v. California Water Service Co., 16 Cal.2d 500, 515 [106 P.2d 886] ; Judson v. Giant Powder Co., 107 Cal. 549, 561 [40 P. 1020, 48 Am.St.Rep. 146, 29 L.R.A. 718].)

All of the eases hold, in effect, that it must appear, either as a matter of common experience or from evidence in the ease, that the accident is of a type which probably would[*443] not happen unless someone was negligent. In the absence of such a probability there would be no basis for an inference of negligence which would serve to take the place of evidence of some specific negligent act or omission. The defendant, of course, should not be liable unless it appears from all the facts and circumstances that there is a sufficient causal connection between his conduct and the plaintiff’s injury, and it has been held that res ipsa loquitur will not apply if it is equally probable that the negligence was that of someone other than the defendant. (LaPorte v. Houston, 33 Cal.2d 167, 169-170 [199 P.2d 665]; Hernandez v. Southern Calif. Gas Co., 213 Cal. 384, 387-388 [2 P.2d 360]; Olson v. Whitthorne & Swan, 203 Cal. 206, 208-209 [263 P. 518, 58 A.L.R. 129] ; Tower v. Humboldt Transit Co., 176 Cal. 602, 607 [169 P. 227].) As said in the LaPorte case, supra (33 Cal.2d at p. 170), the doctrine is not applicable where it is “at least equally probable that the accident was caused by some fault . . . for which defendants were not liable” and where “it cannot be said that it is more likely than not that the accident was caused by the negligence of defendants. ’’ (Italics added.) In dealing with this problem the courts have usually said that the defendant must have “management” or “control” of the agency or instrumentality which caused the injury. (See, for example, Raber v. Tumin, 36 Cal.2d 654, 659 [226 P.2d 574] ; Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724] ; Michener v. Hutton, 203 Cal. 604, 607, 609 [265 P. 238, 59 A.L.R. 480]; Olson v. Whitthorne & Swan, 203 Cal. 206, 208 [263 P. 518, 58 A.L.R. 129] ; Judson v. Giant Powder Co., 107 Cal. 549, 556 [40 P. 1020, 48 Am.St.Rep. 146, 29 A.L.R. 718] ; 19 Cal.Jur., 708-709.) It has been stated that the purpose of this requirement is to eliminate the possibility that the accident was caused by someone other than the defendant. (See Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458 [150 P.2d 436]; Honea v. City Dairy, Inc., 22 Cal.2d 614, 618 [140 P.2d 369]; 1 Shearman and Redfield on Negligence [rev.ed., 1941], pp. 153-154; Prosser on Torts [1941], p. 298.) Accordingly, its use is merely to aid the courts in determining whether, under the general rule, it is more probable than not that the injury was the result of the defendant’s negligence.

The requirement of control is not an absolute one. Although, as we have seen, the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude[*444] all other persons who might possibly have been responsible where the defendant’s negligence appears to be the more probable explanation of the accident. (See Helms v. Pacific Gas & Electric Co., 21 Cal.App.2d 711, 713-714 [70 P.2d 247] [third person might have tampered with electrolier located on public street] ; Van Horn v. Pacific Refining & R. Co., 27 Cal.App. 105, 108-110 [148 P. 951] [third person might have loosened pipe cap]; Prosser, Res Ipsa Loquitur in California [1949], 37 Cal.L.Rev. 183, 197-201.) Further, it is settled that the fact that the accident occurs some time after the defendant relinquishes control of the instrumentality which causes the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled by the plaintiff or some third person, or its condition otherwise changed, after control was relinquished by the defendant. (Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517-518 [203 P.2d 522] ; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458-459 [150 P.2d 436] ; see Honea v. City Dairy, Inc., 22 Cal.2d 614, 617-618 [140 P.2d 369].) Of course, it must appear that the defendant had sufficient control or connection with the accident that it can be said that he was more probably than not the person responsible for plaintiff’s injury.

Some eases have stated that the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. (See Ybarra v Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258] ; Raber v. Tumin, 36 Cal.2d 654, 659 [226 P.2d 574] ; Cavero v. Franklin etc. Benev. Soc., 36 Cal.2d 301, 309 [223 P.2d 471] ; Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53]; 9 Wigmore on Evidence [3d ed., 1940], § 2509.) This is allied to the condition of control by the defendant and has also been employed as a means of showing that the defendant, rather than the plaintiff, had control and was responsible for the injury. (See Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458 [150 P.2d 436].) It should not be confused with the problem of contributory negligence, as to which defendant has the burden of proof, and its purpose, like that of control by the defendant, is merely to assist the court in determining whether it is more probable than not that the defendant was responsible for the accident. As recently held by the Supreme Court of Oregon in a well reasoned opinion, a plaintiff may properly rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence[*445] excludes his conduct as the responsible cause. (Gow v. Multnomah Hotel, 191 Ore. 45 [224 P.2d 552, 555-560, 228 P.2d 791].)

Another factor which some of the cases have considered in applying the doctrine is that the defendant may have superior knowledge of what occurred and that the chief evidence of the cause of the accident may be accessible to the defendant but inaccessible to the plaintiff. (See Ybarra v. Spangard, 25 Cal.2d 486, 490 [154 P.2d 687, 162 A.L.R. 1258] ; Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 731-732 [81 P.2d 950, 118 A.L.R. 533]; Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 64 [59 P.2d 962] ; Smith v. O’Donnell, 215 Cal. 714, 722 [12 P.2d 933] ; Kenney v. Antonetti, 211 Cal. 336, 339 [295 P. 341] ; Connor v. Atchison etc. Ry. Co., 189 Cal. 1, 5 [207 P. 378, 22 A.L.R. 1462]; O’Connor v. Mennie, 169 Cal. 217, 225-226 [146 P. 674]; Steele v. Pacific Elec. Ry. Co., 168 Cal. 375, 378-379 [143 P. 718] ; Housel v. Pacific Elec. Ry. Co., 167 Cal. 245, 249-250 [139 P. 73, Ann. Cas. 1915C 665, 51 L.R.A.N.S. 1105] ; Wyatt v. Pacific Elec. Ry. Co., 156 Cal. 170, 174 [103 P. 892]. See, also, Palmer, A Strange Misplacement of Legislative Power, 25 Cal.State Bar J. 440, 444.) It seems clear, however, that the doctrine may be applied even though the defendant is not in a better position than plaintiff to explain what occurred if it appears more probable than not that the injury resulted from negligence on the part of defendant. (See Leet v. Union Pac. R. Co., 25 Cal.2d 605, 619, 620 [155 P.2d 42,158 A.L.R. 1008] ; cf. Parker v. James Granger, Inc., 4 Cal.2d 668, 675 [52 P.2d 226] ; see Prosser, Res Ipsa Loquitur in California [1949], 37 Cal.L.Rev. 183, 202-204.)

The doctrine has been applied in certain specific unusual situations where there is clearly a probability that one or more of several persons was negligent, but where the plaintiff is unable to point out which of them is responsible for his injury. For example, the doctrine has been applied against a common carrier and in favor of its passenger who was injured in a collison between the public conveyance and another vehicle. The reason given for applying the doctrine in such cases is “that in view of the very high degree of care essential under the law on the part of a carrier of persons toward those who are its passengers, such a collision would not happen in the ordinary course of events if the carrier exercised such care, and that ordinarily when such an accident occurs, it is due to failure on the part of the[*446] person operating the ear to use the proper degree of care in so operating it, or, in other words, to ‘the manner in which defendant used or directed the instrumentality under its control. ’ ’ ’ (Housel v. Pacific Elec. Ry. Co., 167 Cal. 245, 249 [139 P. 73, Ann.Cas. l915C 665, 51 L.R.A.N.S. 1105]; Smith v. O’Donnell, 215 Cal. 714, 723 [12 P.2d 933].)

Another unusual situation in which the doctrine was applied although plaintiff could not prove which of several defendants actually caused his injuries is found in Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258], In that case a patient received injuries while unconscious during the course of medical treatment, and we held that all persons having any control over his body could properly be called upon to give an explanation of their conduct. (See, also, Dierman v. Providence Hospital, 31 Cal.2d 290, 292 [188 P.2d 12]; Cavero v. Franklin etc. Benev. Soc., 36 Cal. 2d 301, 308 et seq. [223 P.2d 471].) While it did not appear that any particular defendant had exclusive control or that it was more probable than not that the injury resulted from negligence on the part of each individual defendant, the court relied on the fact that the defendants had superior knowledge and that there was a special relationship between the parties since the plaintiff had submitted himself to the defendants’ care.

The doctrine may, of course, be applied against several defendants where the circumstances are such as to show a probability that all of them were negligent. (See Prosser, Res Ipsa Loquitur in California [1949], 37 Cal.L.Rev. 183, 207-208; cf. Raber v. Tumin, 36 Cal.2d 654 [226 P.2d 574] ; Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R 1072].)

In summary, it appears from the foregoing that, as a general rule, res ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the' person who is responsible. In determining whether such probabilites exist with regard to a particular occurrence, the courts have relied both upon common knowledge and the testimony of expert witnesses, and they have considered the circumstances relating to the accident in each particular ease, such as the extent of control exercised by the defendant, the plaintiff’s own conduct, the likelihood of negligence by some third person, and, in some situations, evidence that the defendant is better able than the plaintiff to explain what happened. All of these[*447] matters have been treated as aids to help the courts in determining whether the accident was of such a nature that the injury was more probably than not the result of the defendant’s negligence.

In the present ease, it seems reasonably clear that the accident probably would not have occurred without negligence by someone. The bottle may have been improperly handled in such a manner as to damage it; there may have been a failure to make a proper inspection for defects; it could have been filled with an excessive charge of gas; or it might have been improperly manufactured. Common experience indicates that it would be unreasonable to hold that a bottle of carbonated liquid would be likely to explode if all persons who had anything to do with it had exercised proper care.

A more difficult question is whether we can say, under all the circumstances, that the accident was of such a nature that it warrants a reasonable inference that defendant, rather than someone else, was responsible for the unknown negligent act or omission which caused the explosion. It is undisputed that defendant had control over the bottle and its contents for a substantial portion of the time during which the defect which caused the explosion might either have been created or discovered. Defendant did not have actual control after the bottle was delivered to the restaurant nor while it was being manufactured, and it is, of course, possible that the bottle might have exploded because of improper handling after delivery or because it was improperly manufactured.

Plaintiff, however, introduced evidence which is sufficient to warrant an inference that the bottle was not mistreated subsequent to the time it was placed in the cooler by defendant’s driver. The cooler, which was covered by a lid, appears to have been a safe and proper container for storage and refrigeration of carbonated beverages. Plaintiff did not handle any of the bottles which were delivered by defendant, and the bottle simply exploded without being touched when plaintiff reached into the cooler. Although some of the bottles were removed by plaintiff’s employees during the interval between the delivery and the accident, the construction of the cooler was such that the bottles would ordinarily be lifted straight up through the top without disturbing any of those remaining. It is not necessary that plaintiff eliminate every remote possibility of injury to the bottle after defendant relinquished control, and it could reasonably be[*448] inferred that the bottle which exploded was not injured by-plaintiff or any third person after it was left by defendant’s driver. (See Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 518 [203 P.2d 522] ; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458 [150 P.2d 436].) Since sound and properly prepared bottles of carbonated beverages will not explode when carefully handled (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 459 [150 P.2d 436] ; cf. Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517 [203 P.2d 522]), and since there is evidence that the bottle was kept in a safe place after delivery by defendant, the jury could properly find that the bottle was in some manner defective when defendant’s employee placed it in the cooler.

We must, therefore, examine the possible reasons why the bottle was defective when delivered to plaintiff, ascertain which would and which would not be attributable to the negligence of defendant, and determine whether we can say that, in the light of common experience, the defective condition more probably than not resulted from a cause or causes for which defendant is responsible. Some of the possible causes could clearly be attributed to negligence on the part of defendant. Defendant would, of course, be liable for any defect in the glass which may have been caused by improper bottling procedure or by mishandling by its employees during preparation for delivery or during actual delivery. An excessive internal pressure might well have caused the explosion, and the charging of the bottle with gas was entirely within the control of defendant. In Honea v. City Dairy, Inc., 22 Cal.2d 614, 622 [140 P.2d 369], we recognized that in applying the doctrine of res ipsa loquitur a distinction could be made between cases involving bottles of milk and those dealing with bottles of carbonated beverages. One who bottles liquids under pressure necessarily must adopt different methods of procedure and take precautionary steps not required of one bottling inert liquids. We held in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 459 [150 P.2d 436], that since “it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant’s negligence would arise.”

Further, the explosion may have resulted from a visible defect in the glass bottle, and the Escola case is likewise authority for the proposition that an inference of negligence[*449] would arise from the failure of the bottler to discover defects of this type, since they would normally be discovered upon a reasonable inspection. (24 Cal.2d at pp. 459-460.)

The evidence does not show whether the bottle which exploded was a new or a used one. In the Escola case (24 Cal.2d at pp. 460-461), we held that if defects develop in used bottles which are not discoverable upon visual inspection, there is a duty upon the bottler of carbonated beverages to make appropriate tests before they are refilled, and that if such tests are not commercially practicable the bottles should not be re-used. The only suggested possible cause of the defective condition of the bottle which might not be attributable to defendant’s negligence is that the bottle may have been a new one and may have contained latent defects which the bottler had no practicable means of discovering. (See Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 460 [150 P.2d 436] ; Honea v. City Dairy, Inc., 22 Cal.2d 614, 618-621 [140 P.2d 369].) It is our opinion, however, that the existence of this possibility is insufficient to prevent application of the doctrine of res ipsa loquitur.

In view of the foregoing, it seems clear that there is a balance of probabilities pointing to defendant’s negligence as the most likely explanation of the accident, and plaintiff is therefore entitled to invoke the aid of the doctrine of res ipsa loquitur. This conclusion is in accord with decisions in many other jurisdictions where the doctrine has been applied under circumstances similar to those present here. (See Groves v. Florida Coca-Cola Bottling Co.,-Fla.- [40 So.2d 128]; Starke Coca-Cola Bottling Co. v. Carrington, 159 Fla. 718 [32 So.2d 583]; Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E. 1087] ; Joly v. Jones, 115 Vt. 174 [55 A.2d 181] ; Honea v. Coca Cola Bottling Co., 143 Tex. 272 [183 S.W.2d 968, 160 A.L.R. 1445] ; Ortego v. Nehi Bottling Works, 199 La. 599 [6 So.2d 677]; Bradley v. Conway Springs Bottling Co., 154 Kan. 282 [118 P.2d 601]; MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868].)

Defendant contends that there was a conflict in the evidence as to whether plaintiff was injured by a Coca Cola bottle or by a bottle of a different brand and that the trial court improperly took the determination of this question from the jury when it instructed that the happening of the acei[*450] dent gave rise to an inference of negligent conduct “on the part of the defendant.” The jury was told, however, that this instruction is based upon a doctrine which may be applied only where “some certain instrumentality, by which injury to the plaintiff was proximately caused, was in the possession and under the exclusive control of the defendant at the time the cause of the injury was set in motion. . . .” It thus appears that the jury could not have been misled in the manner suggested by defendant.

The judgment is affirmed.

Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.

*

The language used by Shearman & Redfield was quoted from the opinion of Chief Justice Erie in Scott v. London & St. Katherine Docks Co. [1865] 3 H. & C. 596, 601, 159 Eng.Rep. 665, 667. Even before the Scott ease this court declared that in view of the high degree of care owed by a common carrier, the occurrence of an accident to a stagecoach gave rise to a prima facie presumption in favor of a passenger that the coachman was negligent. (Fairchild v. California Stage Co. (1859), 13 Cal. 599, 603-605; see, also, Boyce v. California Stage Co., 25 Cal. 460, 467-469; Bush v. Barnett, 96 Cal. 202, 203-204 [31 P. 2].)