Lejeune

With certain exceptions and additional observations which will hereinafter appear the court adopts the opinion of Justice pro tern. Lamberson originally filed in this case:

As stated, defendant claims that the nature of the accident was not such as to exclude the inference that its cause was the fouling of the anchor, an occurrence which it could not prevent, and that consequently the doctrine does not apply.

It has been said that the doctrine is to be applied only when the nature of the accident itself not only supports the inference of defendant’s negligence “but excludes all others”. In Carlsen v. Dichl, 57 Cal. App. 731 [ 208 Pac. 150 ], such a rule appears to have been adopted as one of the grounds for the decision. In other cases, namely, Olson v. Whitthorne & Swan, 203 Cal. 206 [ 263 Pac. 518 , 58 A. L. R. 129], White v. Spreckels, 10 Cal. App. 287 [ 101 Pac. 920 ], Scellars v. Universal Service Everywhere, 68 Cal. App. 252 [ 228 Pac. 879 ], and Rosenbaum v. Luce, 96 Cal. App. 149 [ 273 Pac. 862 ], the above was referred to as the rule; but in each of these cases the instrumentality causing the injury was shown not to have been under the exclusive control of the defendant…