Can a judge refuse to give an instruction of res ipsa loquitur?

[248 Cal.App.2d 252] But appellant asserts that there is an exception to the above rules when the judge has said that he would not give an instruction on a subject such as res ipsa loquitur, because the law does not require idle acts. Appellant cites Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 160 P.2d 21, in which it was held that, where the judge had ruled repeatedly (and erroneously) during the trial that certain declarations of an employee were not admissible against his employer and had repeatedly instructed the jury to that effect, appellant had not waived the error by failing to request that the jury be instructed that the declarations were admissible. The case is obviously distinguishable. The court in our case had not given erroneous instructions contrary to the proposed one, nor had it made a completely firm and specific ruling. The judge states, in the settled statement, that he

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There is a case (not cited in the briefs), Hudspeth v. Jaurequi, 234 Cal.App.2d 526, 44 Cal.Rptr. 428, in which judgment for defendant was reversed where plaintiff's counsel had tendered the standard res ipsa loquitur instruction at the outset, but later orally requested a conditional one, which was refused on the judge's view, erroneous as decided on appeal, that plaintiff had introduced evidence of specific acts of negligence. But this case, besides being very liberal towards the appellant, is readily distinguishable from the one before us. The trial judge's refusal in Hudspeth was an outright rejection of the whole proposition of res ipsa loquitur on an erroneous theory. The judge in our case made no such specific ruling on a stated theory. But more than this, the oral instruction in Hudspeth no doubt was relatively simple. This was a rear-end case, in which plaintiff contended that her car was stationary, after a gradual stop, but defendant contended plaintiff's car stopped suddenly. The terms of the oral instruction of conditional or informative res ipsa loquitur would not have been difficult for the trial court to construct, mentally, or for the appellate court to recognize and to deem the trial judge to have recognized at the time of his ruling.