Gicking

*75 Opinion

This is an appeal from a judgment on jury verdict. We affirm.

Appellants sued respondents for damages as a result of a real property fire of unknown cause. During trial, appellant submitted both absolute and conditional res ipsa loquitur jury instructions. The court refused to give either instruction. The jury was given general negligence instructions. It rendered a judgment for respondents. Appellants’ motion for a new trial was denied.

The issue on appeal is whether the court committed prejudicial error by refusing to give the res ipsa loquitur instructions. We find the evidence at trial did not warrant application of the res ipsa loquitur doctrine.

Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. (Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 793 [ 28 Cal.Rptr. 277 ]; Dorswitt v. Wilson (1942) 51 Cal.App.2d 623, 625 [ 125 P.2d 626 ].) It is based on a theory of “probability” where there is no direct evidence of defendant’s conduct, (Horner v. Barber (1964) 229 Cal.App.2d 829, 832 [ 40 Cal.Rptr. 570 , 8 A.L.R.3d 966 ]; Fowler v. Seaton (1964) 61 Cal.2d 681, 687 [ 39 Cal.Rptr. 881 , 394 P.2d 697…