res ipsa loquitur is not applicable doctrine in California

1960The doctrine of res ipsa loquitur is not applicable to such cases.’ [Citations.] Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ] : ‘If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].’ Nor may a verdict be upheld ‘only by resort to speculation.’ ” Applied to the facts at bar the following language of Nagle v. City of Long Beach, 113 Cal.App.2

1955(Nagle v. City of Long Beach, 113 Cal.App.2d 669 [ 248 P.2d 799 ].) The doctrine of res ipsa loquitur is not applicable under the facts in this ease.

1956(La Porte v. Houston, 33 Cal.2d 167, 169 [ 199 P.2d 665 ] ; Zentz v. Coca-Cola Bottling Co., 39 Cal.2d 436, 442 [ 247 P.2d 344 ].) Moreover, in view of the law that the doctrine of res ipsa loquitur is not applicable (1) unless the negligent act was caused by an agency or instrumentality *883 within the control of the defendant and (2) must not have resulted from a voluntary action of the plaintiff (Ybarra v. Spangard, supra, p. 489 ), it is here recalled that Beatty’s last control over the bleachers and winches was April 30, 1952; that thereafter they were for eight months under the exclusive

1956(La Porte v. Houston, 33 Cal.2d 167, 169 [ 199 P.2d 665 ] ; Zentz v. Coca-Cola Bottling Co., 39 Cal.2d 436, 442 [ 247 P.2d 344 ].) Moreover, in view of the law that the doctrine of res ipsa loquitur is not applicable (1) unless the negligent act was caused by an agency or instrumentality *883 within the control of the defendant and (2) must not have resulted from a voluntary action of the plaintiff (Ybarra v. Spangard, supra, p. 489 ), it is here recalled that Beatty’s last control over the bleachers and winches was April 30, 1952; that thereafter they were for eight months under the exclusive

1967Code, § 815.6.) Res Ipsa Loquitur Doctrine [5a] Plaintiff's contention that the trial court erred in determining as a matter of law that the doctrine of res ipsa loquitur is not applicable in this case, and in refusing to give plaintiff's proffered instructions on the subject, also lacks merit. [6] As stated in DiMare v. Cresci (1962) 58 Cal.2d 292, 299 [ 23 Cal. Rptr. 772 , 373 P.2d 860 ]: "The introduction of evidence of specific acts of negligence does not deprive the plaintiff of the benefit of the doctrine [of res ipsa loquitur] unless the facts as to the cause of the accident and the car

1967Code, § 815.6.) Res Ipsa Loquitur Doctrine [5a] Plaintiff's contention that the trial court erred in determining as a matter of law that the doctrine of res ipsa loquitur is not applicable in this case, and in refusing to give plaintiff's proffered instructions on the subject, also lacks merit. [6] As stated in DiMare v. Cresci (1962) 58 Cal.2d 292, 299 [ 23 Cal. Rptr. 772 , 373 P.2d 860 ]: "The introduction of evidence of specific acts of negligence does not deprive the plaintiff of the benefit of the doctrine [of res ipsa loquitur] unless the facts as to the cause of the accident and the car

1963(Brown v. Reliable Iron Foundry, Inc. (1959) 174 Cal.App.2d 294, 298 [ 344 P.2d 633 ].) The sole question remaining is whether the evidence was sufficient to support a judgment against Margen or Alta Bates Hospital.

1963(Brown v. Reliable Iron Foundry, Inc. (1959) 174 Cal.App.2d 294, 298 [ 344 P.2d 633 ].) The sole question remaining is whether the evidence was sufficient to support a judgment against Margen or Alta Bates Hospital.

1961(Jensen v. Minard, 44 Cal.2d 325, 329 [ 282 P.2d 7 ].) ’’ (Phillips v. Nolle (1958), 50 Cal.2d 163, 166-167 [ 323 P.2d 385 ].) In Guerra v. Handlery Hotels, Inc. (1959), 53 Cal. 2d 266 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ], the Supreme Court is highly critical of the “mere happening" instruction even in cases where the doctrine of res ipsa loquitur is not applicable as a matter of law, but held that the giving of it was not prejudicial in that case because the question of the plaintiff’s contributory negligence was raised.

1961(Jensen v. Minard, 44 Cal.2d 325, 329 [ 282 P.2d 7 ].) ’’ (Phillips v. Nolle (1958), 50 Cal.2d 163, 166-167 [ 323 P.2d 385 ].) In Guerra v. Handlery Hotels, Inc. (1959), 53 Cal. 2d 266 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ], the Supreme Court is highly critical of the “mere happening" instruction even in cases where the doctrine of res ipsa loquitur is not applicable as a matter of law, but held that the giving of it was not prejudicial in that case because the question of the plaintiff’s contributory negligence was raised.

1961(Jensen v. Minard, 44 Cal.2d 325, 329 [ 282 P.2d 7 ].) ’’ (Phillips v. Nolle (1958), 50 Cal.2d 163, 166-167 [ 323 P.2d 385 ].) In Guerra v. Handlery Hotels, Inc. (1959), 53 Cal. 2d 266 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ], the Supreme Court is highly critical of the “mere happening" instruction even in cases where the doctrine of res ipsa loquitur is not applicable as a matter of law, but held that the giving of it was not prejudicial in that case because the question of the plaintiff’s contributory negligence was raised.

1961(Jensen v. Minard, 44 Cal.2d 325, 329 [ 282 P.2d 7 ].) ’’ (Phillips v. Nolle (1958), 50 Cal.2d 163, 166-167 [ 323 P.2d 385 ].) In Guerra v. Handlery Hotels, Inc. (1959), 53 Cal. 2d 266 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ], the Supreme Court is highly critical of the “mere happening" instruction even in cases where the doctrine of res ipsa loquitur is not applicable as a matter of law, but held that the giving of it was not prejudicial in that case because the question of the plaintiff’s contributory negligence was raised.

1957The doctrine of res ipsa loquitur is not applicable to such cases.” (Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556 [ 213 P.2d 417 ]; Thomas v. Moore, 146 Cal.App.2d 59, 63 [ 303 P.2d 624 ].) Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ]: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].” Nor may a verdict be upheld “only by res

1957The doctrine of res ipsa loquitur is not applicable to such cases.” (Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556 [ 213 P.2d 417 ]; Thomas v. Moore, 146 Cal.App.2d 59, 63 [ 303 P.2d 624 ].) Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ]: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].” Nor may a verdict be upheld “only by res

1957(Estate of Teed, 112 Cal.App.2d 638, 644 [ 247 P.2d 54 ].) Of course an infer *742 enee is sufficient to establish a fact in issue but such an inference must be founded on “a fact legally proved.” (Code Civ.

1957(Estate of Teed, 112 Cal.App.2d 638, 644 [ 247 P.2d 54 ].) Of course an infer *742 enee is sufficient to establish a fact in issue but such an inference must be founded on “a fact legally proved.” (Code Civ.

1957The doctrine of res ipsa loquitur is not applicable to such cases.” (Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556 [ 213 P.2d 417 ]; Thomas v. Moore, 146 Cal.App.2d 59, 63 [ 303 P.2d 624 ].) Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ]: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].” Nor may a verdict be upheld “only by res

1957The doctrine of res ipsa loquitur is not applicable to such cases.” (Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556 [ 213 P.2d 417 ]; Thomas v. Moore, 146 Cal.App.2d 59, 63 [ 303 P.2d 624 ].) Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ]: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].” Nor may a verdict be upheld “only by res

1957The doctrine of res ipsa loquitur is not applicable to such cases.” (Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556 [ 213 P.2d 417 ]; Thomas v. Moore, 146 Cal.App.2d 59, 63 [ 303 P.2d 624 ].) Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ]: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].” Nor may a verdict be upheld “only by res

1957The doctrine of res ipsa loquitur is not applicable to such cases.” (Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556 [ 213 P.2d 417 ]; Thomas v. Moore, 146 Cal.App.2d 59, 63 [ 303 P.2d 624 ].) Also, as pointed out in Reese v. Smith, 9 Cal.2d 324 , at page 328 [ 70 P.2d 933 ]: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.] A judgment cannot be based on guesses or conjectures. [Citation].” Nor may a verdict be upheld “only by res

1956(La Porte v. Houston, 33 Cal.2d 167, 169 [ 199 P.2d 665 ] ; Zentz v. Coca-Cola Bottling Co., 39 Cal.2d 436, 442 [ 247 P.2d 344 ].) Moreover, in view of the law that the doctrine of res ipsa loquitur is not applicable (1) unless the negligent act was caused by an agency or instrumentality *883 within the control of the defendant and (2) must not have resulted from a voluntary action of the plaintiff (Ybarra v. Spangard, supra, p. 489 ), it is here recalled that Beatty’s last control over the bleachers and winches was April 30, 1952; that thereafter they were for eight months under the exclusive

1956(La Porte v. Houston, 33 Cal.2d 167, 169 [ 199 P.2d 665 ] ; Zentz v. Coca-Cola Bottling Co., 39 Cal.2d 436, 442 [ 247 P.2d 344 ].) Moreover, in view of the law that the doctrine of res ipsa loquitur is not applicable (1) unless the negligent act was caused by an agency or instrumentality *883 within the control of the defendant and (2) must not have resulted from a voluntary action of the plaintiff (Ybarra v. Spangard, supra, p. 489 ), it is here recalled that Beatty’s last control over the bleachers and winches was April 30, 1952; that thereafter they were for eight months under the exclusive

1947(Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664, 688 [ 80 P.2d 185, 1016 ]; Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [ 40 P.2d 873 ].) Eespondents Palmieri were engaged in the cleaning and dyeing business both wholesale and retail, but the greater amount of their business was wholesale.

1947(Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664, 688 [ 80 P.2d 185, 1016 ]; Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [ 40 P.2d 873 ].) Eespondents Palmieri were engaged in the cleaning and dyeing business both wholesale and retail, but the greater amount of their business was wholesale.

1947(Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664, 688 [ 80 P.2d 185, 1016 ]; Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [ 40 P.2d 873 ].) Eespondents Palmieri were engaged in the cleaning and dyeing business both wholesale and retail, but the greater amount of their business was wholesale.

1947(Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664, 688 [ 80 P.2d 185, 1016 ]; Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [ 40 P.2d 873 ].) Eespondents Palmieri were engaged in the cleaning and dyeing business both wholesale and retail, but the greater amount of their business was wholesale.

1934Co., 114 Cal. App. 85, 90 [ 299 Pac. 749 ].) The doctrine of res ipsa loquitur is not applicable to the situation which is here presented and even if it were it would still be a question for the fact triers to determine whether the testimony of respondent, Van Ness, was sufficient to rebut the inference of negligence which the happening of the accident created.

1934Co., 114 Cal. App. 85, 90 [ 299 Pac. 749 ].) The doctrine of res ipsa loquitur is not applicable to the situation which is here presented and even if it were it would still be a question for the fact triers to determine whether the testimony of respondent, Van Ness, was sufficient to rebut the inference of negligence which the happening of the accident created.