HUGH H. DANNER et al., Appellants, v. WILLIAM ATKINS et al., Respondents, 47 Cal. 2d 327

SCHAUER, J. Plaintiffs appeal from an adverse judgment of the court, sitting without a jury, in their action to recover for personal injuries and property damages sustained when a truck, allegedly as the result of negligence of the driver, defendant Atkins, rolled into a café plaintiffs operated. We have concluded that plaintiffs’ contention that by reason of the res ipsa loquitur doctrine negligence of the driver was established as a matter of law, is without merit, and that the judgment should be affirmed.

From the record it appears that at about 8 :30 on an evening in October, 1952, a truck being driven by defendant Atkins, as the employe of defendants Bischel and belonging to defendant Insured Transport, Inc., developed motor trouble. Atkins pulled off the highway and stopped the truck at the Wheeler Ridge Garage. At the garage he asked a mechanic, McElyea, to look at the motor, while he, Atkins, went to a nearby café to telephone to his employer.

Atkins, who then left the truck while the mechanic was checking the engine, testified that at that time he had the equipment in double low gear with the vacuum brakes on and the mechanical hand emergency brake set. In Atkins’ six to eight years of experience as a truck driver there is no more effective way to apply braking power on such equipment, and it was parked in a safe manner. Atkins then walked some 250 feet to the café, which plaintiffs operated, and was making his telephone calls when the truck struck the café building; about seven to nine minutes had elapsed since he had left the truck.

During a part of that time the mechanic was working in or about the truck. Atkins had been driving this particular rig about two and one-half months and had had no previous brake trouble; on the day of the accident he had applied the brakes many times, always successfully.

When he parked the truck, after being told by the mechanic that “it would be all right to set the truck there,” both the truck and the front wheels were facing parallel to the highway, and the truck would not have collided with the café if the steering wheel had not been turned; the area where he parked the truck appeared level to him and he did not put blocks under the truck wheels, although the truck carried blocks. There was evidence that the slope of the ground from the point where the truck was parked, to the café, was about 2.7 per cent, but that the slope was so general that the ground appeared level.

The mechanic, McElyea, who was not named as a defendant, testified as a witness for plaintiffs that when Atkins had left the truck to go to the café he, the mechanic, asked whether the brakes were on and Atkins replied that they were; that Atkins said that he would make a telephone call and then come back and “we would check it out more”; that the witness spent another two to four minutes looking at the motor, during which time he did not “have the motor running, ” and then followed Atkins to the café and had just ordered or was about to order coffee when the truck struck the building; that the witness then went outside and looked into the cab of the truck and determined that the transmission was in gear as to one gear box although he had not looked inside the cab before going to the café; that he did not look at more than one gear box; that the “general lay of the land in the vicinity of where the truck stopped” is such that “Quite a few think it is level there . . .

The grade is very deceiving” (italics added); that some truck drivers use blocks under the wheels when they stop there and some do not, and the witness did not caution Atkins to use blocks on this occasion, nor did he himself put blocks under the truck before he left it to go to the café; that the truck was “absolutely dead stationary” when the witness left it and had been stationary for at least two to four minutes after Atkins had stopped the motor; that he did not remember whether at the time he left the truck and went to the café there were any other people in the general area, although commonly there are people “around there all hours of the night.” The trial court found that it was not true that Atkins negligently handled the truck and proximately caused the accident.

Plaintiffs contend, however, that the accident was “unexplained” and that because it was unexplained the res ipsa loquitur doctrine applies and thereby establishes Atkins’ negligence as a matter of law, while defendants urge that the doctrine does not apply as against them because the truck was under the control of the mechanic rather than of Atkins just before the accident (see Druzanich v. Criley (1942), 19 Cal.2d 439, 444 [3] [122 P.2d 53]) and that in any event the testimonies of Atkins and the mechanic are sufficient to support the court’s finding against negligence by Atkins.

It is ordinarily a question for the fact finder, first, whether facts which give rise to the res ipsa loquitur inference of negligence actually exist and, second, if the inference arises, whether it prevails or is overcome. Here, the evidence would support a finding that the inference as to Atkins never arose.

The essential elements which plaintiff must establish before the inference will arise have often been stated, and include the showing that defendant had exclusive control of the thing causing the injury or, if he had relinquished control, then a showing that the instrumentality had not been improperly handled by some third person or its condition otherwise changed after control was relinquished by defendant. (Burr v. Sherwin Williams Co. (1954), 42 Cal.2d 682, 691-692 [10] [268 P.2d 1041]; Zentz v. Coca Cola Bottling Co. (1952), 39 Cal.2d 436, 444 [6] [247 P.2d 344]; Escola v.

Coca Cola Bottling Co. (1944), 24 Cal.2d 453, 457 [150 P.2d 436].) The evidence in this case, as above noted, shows that the driver, defendant Atkins, had left the truck, in double low gear and with the brakes locked, in the care of the mechanic McElyea, who was inspecting the motor, and that Atkins had himself been absent from the truck for seven to nine minutes before the accident occurred. During a substantial portion of that time McElyea was working on or about the truck.

Plaintiffs, who have the burden of establishing the elements which permit application of the res ipsa loquitur doctrine, produced McElyea as their witness. His testimony was not binding on defendants. Prom the facts that McElyea was not named as a party defendant and was in a sense an interested party on plaintiffs’ behalf and, in his own interest, adverse to defendants, the court could well have concluded that the unexplained part of the accident, insofar as credible testimony was concerned, was what happened to the truck after Atkins had left it in McElyea’s care.

That is, the court could well have believed, as it impliedly did, that Atkins’ explanation of his own conduct was fully satisfactory and excluded negligence on his part but that as to McElyea’s testimony either it was unacceptable, and that some act of the latter was actually the sole proximate cause of the accident, or that it was acceptable and indicated that the act of some unidentified person must have intervened and caused the accident.

As already noted, McBlyea himself testified that he was aware of the grade, that it was “very deceiving,” but that he did not caution defendant Atkins concerning it, or himself put blocks under the wheels, and that he left the truck unattended although commonly there were people “around there all hours of the night.” Since McBlyea was asked to give his attention to the motor trouble and was trying to “check it out” it would seem reasonable that he might try to start the motor; he had asked Atkins, as the latter started for the café, if the brakes were on.

If he tried to start it, it would be reasonable to disengage the gears. Since the trial court impliedly found that the truck was securely parked with the brakes locked and with the front wheels headed away from the café building when Atkins left it, but rolled away and turned toward the-building only after McBlyea had given it his attention and then left it unattended, it would be logical to conclude that McBlyea or some unidentified person must have changed its condition, and that the res ipsa loquitur doctrine was not applicable as against defendants.

If, however, the trial court did conclude that facts existed which gave rise to the res ipsa inference, nevertheless, as commented in Druzanich v. Criley (1942), supra, 19 Cal.2d 439, 444 [4] [122 P.2d 53], that doctrine even where applicable does not give a plaintiff an absolute right to a judgment in every case, and when the defendant produces evidence to rebut the inference of negligence it is ordinarily a question of fact whether the inference has the greater weight, or is evenly balanced, or has been dispelled or overcome. Thus, in Scott v.

Burke (1952), 39 Cal.2d 388, 398-401 [247 P.2d 313], it was held that the presumptions of due care and innocence (Code Civ.

Proc., § 1963, subds. 1, 4) may be weighed by the fact finder and constitute sufficient evidence to support a finding that the res ipsa loquitur inference has been overcome, and that “it is the function of the trier of facts to determine in the light of all the evidence in the case, including the opposing inferences and presumptions, whether the proof preponderates in favor of one party and against another, or is evenly balanced, and thereupon to resolve the issues in accordance with the rules relating to the burden of proof.” (P. 399 of 39 Cal.2d.) Thus even though we assume that the court could have concluded here, as in the Scott case, that the cause of the accident remained unexplained, nevertheless the testimony of both Atkins and the mechanic, McBlyea, provided direct evidence (as distinguished from the indirect evidence provided by the presumption of due care involved in the Scott case, see Code Civ.

Proc., § 1957) that Atkins had used due care in his handling of the truck, evidence which if believed by the trier of facts is sufficient to rebut the inference of negligence raised by the res ipsa loquitur doctrine.

Atkins’ testimony that when he had left the truck in care of the mechanic it was in such a position and was so headed that “if the steering wheel had not been turned” it would not have collided with the café even if it rolled ahead, and that it was in “double low gear,” “the combination making the compression most effective,” and with both mechanical and vacuum brakes on and locked, coupled with testimony of the mechanic that the truck had remained “absolutely dead stationary” for several minutes after Atkins had stopped the motor and before the mechanic had himself left the truck completely unattended, and that following the accident the mechanic had looked at one gear box and determined that as to it the transmission was in gear, and the further facts that the mechanic was not named as a defendant but instead testified on behalf of plaintiffs, obviously provide evidence sufficient to support the trial court’s finding that Atkins was free from negligence proximately causing the accident.

Price v. McDonald (1935), 7 Cal.App.2d 77, 81 [45 P.2d 425], and Harlow v. Standard Imp. Co. (1904), 145 Cal. 477 [78 P. 1045], cited by plaintiffs, involve the applicability of the res ipsa doctrine in providing supporting evidence for judgments for plaintiffs and are not in point where, as here, sufficiency of the evidence to support a judgment for defendants is the matter at issue.

Plaintiffs further suggest that the findings as to their damages are contradictory in that, according to plaintiffs’ construction, the court found both that plaintiffs suffered no damages and that certain damage inflicted upon the café building was caused to be repaired. Without reciting the findings in detail, it is apparent that the finding that plaintiffs suffered no damages referred to damages proximately resulting from negligence of the defendants.

Further, the finding, also attacked by plaintiffs, that plaintiffs were guilty of misrepresentation which induced defendants to cause the building to be repaired in such a manner as to enhance its value in excess of $2,800 is immaterial in view of the finding of lack of negligence by defendants, and no useful purpose would be served by discussing the contentions of the parties in this respect. The judgment is affirmed. Gibson, C. J., Shenk, J., Traynor, J., Spence, J., and McComb, J., concurred.