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40 Cal. App. 585

181 P 81

Haun v. Tally

California Court of Appeal

Decided April 5, 1919

California Court of Appeal · decided 1919-04-05

<p>[1] Negligence — Action fob Personal Injuries — Fall of Fan in Theater—Bes Ips^a Loquitur—Instructions.—Where a fan which was installed in a theater, and which was exclusively within the charge and control of the owner thereof, pulled or dropped away from its motor bearings and fell and injured' one of the patrons, the accident was such as to make applicable, in an action against such owner for the injuries thus caused, instructions as to a presumption of negligence under the rule of res ipsa loquitur.</p> <p>[2] Id.—Improper Belease of Employee.—The fact that the employee who installed the fan was improperly exculpated in such action is not a matter of which the owner, who was held liable, is in a position on appeal to complain.</p> <p>[3] Id.—Special Damages — Proof — Instructions.—In such action, the court properly instructed the jury that the expenses incurred by the plaintiff for services of physicians and the value of time lost were “subjects of direct proof, and are to be determined only on the evidence which the jury has before it,” while the other elements of damage were from necessity left to the sound discretion of the jury.</p> <p>[4] Id.—Proof of Negligence—Instructions.—In such action, where the general charge of the court as given advised the jury that the burden was upon the plaintiff to sustain the allegations made, there was no error of a substantial nature in refusing to give a particular instruction offered by the defendant which narrated the several things contained in the charging part of the complaint as constituting negligence, and advised the jury that plaintiff was required to make proof thereof.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1919-04-05

How this case has been cited

Cited by 9 later decisions — most recently July 1999

9 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1In denying the application for a hearing in this court after decision by the district court of appeal of the second appellate district, division one, we are not to be understood as approving the instruction discussed in the opinion to the effect that the prima facie case of negligence made by the falling of the fan "would justify a verdict in favor of the plaintiff, unless the evidence in the case negatives that primafacie presumption, and establishes to your satisfaction that itwas not the result of the negligence of the defendants." We think the italicized portion of this instruction was erroneous for the reason suggested in the opinion of the district court of appeal, namely, in leaving out the requirement that the evidence of the plaintiff must preponderate in weight and that the defendant will be entitled to judgment where the countervailing evidence merely balances but does not outweigh the case made by the plaintiff. But in view of the evidence and the charge of the court taken as a whole we cannot conceive that this defect in this particular instruction in any way *592 contributed to the verdict, and therefore are of the opinion that the error must be held to be without prejudice.

¶2The petition for a hearing in this court is denied.

¶3All the Justices concurred, except Wilbur, J., who did not participate.

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