Negligence: Res Ipsa Loquitur: Application to Multiple Defendants in the Alternative

Appellant, a minor, was injured by the explosion of an "aerial bomb" which he found on a county fair ground. Two of the defendants admitted having brought aerial bombs to the fair but each entered evidence which if believed would show that he had not left the article which injured the appellant. These two defendants were completely independent of each other and it was admitted that both could not be responsible for the injury to the child. The lower court instructed the jury that if they could not determine which of the two defendants was actionably negligent, they were compelled to exonerate both. Held, reversed. An instruction based on res ipsa loquitur should have been given and if the jury was unable to determine which of two defendants was guilty of actionable negligence, both should have been held liable. Litzmann v. Humboldt County, (Cal. App. 1954) 273 P. (2d) 82.