47 Wn.2d 659, STEVE VOGREG et al., Appellants, v. SHEPARD AMBULANCE SERVICE, INC., Respondent
[No. 33226. Department One. Supreme Court November 3, 1955.]
STEVE VOGREG et al., Appellants, v. SHEPARD AMBULANCE
SERVICE, INC., Respondent.«1»

"Instruction No. 10. You are instructed that when an instrumentality is shown to be under the exclusive control and management of an owner, or his servant, and an accident occurs which does not ordinarily happen if those who have the control and management use proper care, then you are entitled, in the absence of explanation, to infer that the accident arose from the want of such care.

"If, therefore, you find that the side door of the ambulance was under the exclusive control of the defendant, or its employees, and that such doors do not ordinarily fly open unless improperly maintained or closed, and if you further find that the plaintiff wife did not touch said door nor otherwise cause it to open, then, in the absence of explanation, you are at liberty to infer (but are not required to do so) that the defendant was negligent with respect to closing the door before starting the act of transportation.

"You are further admonished that this instruction does not apply unless you find that neither of the plaintiffs touched said door after getting in the ambulance and before it came open in transit." (Italics ours.)

Plaintiffs took no exception to this instruction. In fact, while stating his exceptions to the instructions, plaintiffs' counsel stated:

662 VOGREG v. SHEPARD AMBULANCE SERVICE. [47 Wn. (2d)

"I feel that the instruction which the Court gave on res ipsa loquitur covers res ipsa loquitur very well, but the phraseology of these instructions [plaintiffs' requested instructions Nos. 3 and 4] perhaps make it clearer to the jury."

[1] Thus, instruction No. 10, as quoted supra, becomes the law of the case.

Plaintiffs argue their first two assignments of error, directed to instructions Nos. 3 and 8, by posing the question:

"Does the doctrine of res ipsa loquitur apply only to such negligence as specifically alleged?"

[2] No special witchcraft is invoked by murmuring the Latin phrase, res ipsa loquitur. It does not cause the rules of pleading and practice to take flight. It does not remove the necessity of proof from a lawsuit. It adds nothing which is not already there.

It is not as meaningful to state "the thing speaks for itself," as it is to ask "What does it say?" A case in which the doctrine of res ipsa loquitur is applicable is a circumstantialevidence case. In it, the jury is permitted to infer negligence from an accident which ordinarily would not have occurred unless someone was negligent. The jury may make the inference of negligence or it may refuse to do so.

In Kemalyan v. Henderson, 45 Wn. (2d) 693, 706, 277 P. (2d) 372 (1954), this court pointed out that on a number of occasions it has held that a plaintiff can allege and attempt to prove specific acts of negligence on the part of a defendant and still rely on res ipsa loquitur. The court said:

"This rule is subject to the qualification (already mentioned) that if plaintiff's evidence goes so far as to fully explain the cause or causes of the accident which injured him, he loses the right to rely on res ipsa, but an unsuccessful attempt to prove specific acts of negligence on the part of defendant does not deprive plaintiff of his right to rely on res ipsa."

Dean Prosser illustrates this point by the following:

"When the plaintiff shows that he was on the defendant's train and the train was derailed, there is an inference that the defendant has been negligent, and a res ipsa case. When

Nov. 1955] VOGREG v. SHEPARD AMBULANCE SERVICE. 663

he goes further and shows that the derailment was caused by an open switch, he destroys any inference that it was due to excessive speed or defective track; but `the inference that the defendant has not used due care in looking after its switches is not destroyed, but considerably strengthened. To say that res ipsa loquitur does not apply is to say that the weaker inference may be drawn but the stronger may not. If the plaintiff goes still further and shows that the switchman was drunk and left the switch open, there is nothing left to infer, and the plaintiff must stand or fall on his specific proof. If he shows that the switch was thrown by an escaped convict with a grudge against the railroad, he has proved himself out of court." 37 Cal. L. Rev. 213.

[3] Due to the nature of this case, plaintiffs' specific allegations and proof of negligence (although the jury might have found them sufficient to establish defendant's liability)do not prevent the application of res ipsa loquitur. If the doctrine applies, as we held it did on the prior appeal, the plaintiffs are not to be penalized by an honest, but perhaps unsuccessful, effort to put in evidence whatever inadequate information they have concerning the happening.

[4] The specific allegations limit res ipsa loquitur to the inferences to be drawn in support of the specific pleading, just as specific allegations limit inferences to be drawn from other circumstantial evidence. However, if the specific allegations of negligence are accompanied by a general allegation of negligence, then res ipsa loquitur may be applied without limitation in support of the general pleading.

The preceding is nothing more than an expansion of the rules (a) that a defendant is entitled to be advised, by the pleadings, of the issues he must be prepared to meet at the trial; and that (b) the jury will be instructed only upon the law applicable to the issues presented by the pleadings supported by evidence.

Paragraph VI of plaintiffs' complaint alleged:

"That the defendant operated said ambulance in a reckless, careless and negligent manner; that he failed to properly safeguard the plaintiffs while being so transferred in said ambulance, that he failed and neglected to follow the usages and customs herein above stated in not providing an attendant in said ambulance; failed and neglected to securely

664 VOGREG v. SHEPARD AMBULANCE SERVICE. [47 Wn. (2d)

and safely lock the doors of said ambulance, and defendant further drove said ambulance in a reckless and careless manner so that the same jarred and rocked,' permitting the doors to be thrown wide open so that the plaintiff Eleanor T. Vogreg was thrown from said swift moving ambulance upon the ground with great force and violence and was thereby severely injured . . ."

Paragraph VII of the complaint continued:

"That the negligence of the defendant consisted:

"1) In driving the ambulance in a manner that the same jumped, jerked and caused the opening of the side door.