prima facie presumption in Missouri

1907As was said in Clark v. Railway, 127 Mo. 197 , when the passenger suffers injury by the breaking down or overturning of a coach, the prima facie presumption is that it was occasioned by some negligence of the carrier and the burden is cast upon the carrier to rebut and establish that there has been no negligence on its part, and that the injury was occasioned by unavoidable accident or by some cause which human precaution and foresight could not have averted. [Goodloe v. Railway, 120 Mo. App. 194 .] Defendant did not attempt to show that the derailment of the cars was caused by unavoidable acc

1907When the facts are established that the plaintiff was a passenger and was injured by some such occurrence, the prima facie presumption is that the injury was occasioned by setae negligence of the carrier “and the burden is cast upon the carrier to rebut and establish that there has been no negligence on its part and that the injury was occasioned by inevitable accident or by some cause which human precaution and foresight could not have averted.” [Clark v. Railway, 127 Mo. 197 ; Goodloe v. Railway, 120 Mo. App. 194 ; Reagan v. Transit Co., 180 Mo. l. c. 144; Dougherty v. Railway, 81 Mo. 325 .]

2016“To establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group within the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process.” Anderson, 79 S.W.3d at 430 ; sce also Duren v, Missouri, 439 U.S. 357, 364 (1979).

2016“To establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group within the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process.” Anderson, 79 S.W.3d at 430 ; see also Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664 , 58 L.Ed.2d 579 (1979).

2022The Supreme Court also quoted with approval its earlier decision in Parker v. Vanhoozer, 44 S.W. 728 (Mo. 1898): But while a court of equity will correct a mistake in a written instrument, the evidence that there has been a mistake should be clear and convincing, because in equity, as in law, the prima facie presumption is indulged that the written contract or instrument exhibits the ultimate intention. [. . .] The burden, therefore, is upon the party asserting the mistake. [. . .] Moreover, the mistake must be mutual and both the agreement and the mistake must be made out by satisfactory and

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1906The instruction under consideration was copied literally from one approved by the Supreme Court in the case of Clark v. Railway, 127 Mo. 197 , and it was there said that “When the passenger suffers injury by the breaking down or overturning of the coach, the prima facie presumption is that it was occasioned by some negligence of the carrier, and the burden is cast upon the carrier to rebnt and establish that there has been no negligence on its part and that the injury was occasioned by inevitable accident or by some cause which human precaution and foresight could not have averted.” [Smiley v.

1905There was sufficient evidence that plaintiff sustained injury from the collision of the cars; and it being admitted that there was such collision, a prima facie presumption arose that the collision was caused by negligence on the part of the carrier; and the burden was cast upon the latter to repel such presumption and to show that the injury was the result of an inevitable accident, or some cause which human precaution and foresight could not have averted. [Clark v. Railway, 127 Mo. 197 ; Lemon v. Chanslor, 68 Mo. 340 ; Furnish v. Railway, 102 Mo. 438 .] The plaintiff before she embarked on d

2014“If this is done the defendant has met the burden of evidence cast upon him, and made a prima facie defense, whereupon the burden swings back to the plaintiff to bring forward evidence in rebuttal, and so on.” Id.

2014"If this is done the defendant has met the burden of evidence cast upon him, and made a prima facie defense, whereupon the burden swings back to the plaintiff to bring forward evidence in rebuttal, and so on." Id.

1998Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1997Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. *931 Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1998Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1997Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. *931 Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1998Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1997Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. *931 Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1998Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1997Smulls, 935 S.W.2d at 14 ; Gray, 887 S.W.2d at 383-84 ; State v. *931 Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994).

1921Other Missouri cases where the doctrine is applied are: Gannon v. Gas Company, 145 Mo. 502 , 47 S.W. 907 ; Seiter v. Bischoff, 63 Mo. App. 157 ; Cleary v. Transit Company, 108 Mo. App. 433 , 83 S.W. 1029 .

1912This maxim is founded upon the feeling that every apparent wrong resulting •in injury to another which may only he palliated or explained by facts within the peculiar knowledge of the perpetrator, carries with it the proof of its wrongful character and places upon him the burden of offering a just excuse. [Morgan v. Cox, 22 Mo. 373 ; Tateman v. Railroad, 96 Mo. App. 448 ; Rattan v. Electric Co., 120 Mo. App. 270, 279 ; Blanton v. Dold, 109 Mo. 65 , 74; Sharp v. Railroad, 114 Mo. 94 ; Gannon v. Gas Light Co., 145 Mo. 502 .] In this case the testimony tended to show that the defendant ran its tr

1915Co., 122 N. Y. 123 ; Walker v. Railroad, 71 Iowa, 658 ; Losee v. Buchanan, 51 N. Y. 476 .] The plaintiff, therefore, made out no case to be submitted to tbe jury and slie is not aided by any testimony introduced by defendant. ’ ’ In tbe case of Bohn v. Railroad, 106, Mo. 429, l. c. 433, an action for damages accruing from injuries received by tbe breaking of a “prize-pole” which was being used by a servant in raising a broken turntable of the master, at page 433 it was said: “It is not the duty of the master to furnish any particular kind of tools, implements or appliances.

1902Co., 122 N. Y. 123 ; Walker v. Railroad, 71 Iowa 658 ; Losee v. Buchanan, 51 N. Y. 476 .] The plaintiff, therefore, made out no case to be submitted to the jury and she is not aided by any testimony introduced by defendant.

1915Co., 122 N. Y. 123 ; Walker v. Railroad, 71 Iowa, 658 ; Losee v. Buchanan, 51 N. Y. 476 .] The plaintiff, therefore, made out no case to be submitted to tbe jury and slie is not aided by any testimony introduced by defendant. ’ ’ In tbe case of Bohn v. Railroad, 106, Mo. 429, l. c. 433, an action for damages accruing from injuries received by tbe breaking of a “prize-pole” which was being used by a servant in raising a broken turntable of the master, at page 433 it was said: “It is not the duty of the master to furnish any particular kind of tools, implements or appliances.

1902Co., 122 N. Y. 123 ; Walker v. Railroad, 71 Iowa 658 ; Losee v. Buchanan, 51 N. Y. 476 .] The plaintiff, therefore, made out no case to be submitted to the jury and she is not aided by any testimony introduced by defendant.

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1913Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gaylord

1907Co., 118 Mo. 548 ; Tracy v. Iron Works, 104 Mo. 193 ; Black River Lumber Co. v. Warner, 93 Mo. 374 ; Bunce v. Beck, 43 Mo. 266 .] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630 ; Parker v. Vanhoozer, 142 Mo. 621 ; Sweet v. Owens, 109 Mo. 1 ; Gayl

1907As was said in Clark v. Railway, 127 Mo. 197 , when the passenger suffers injury by the breaking down or overturning of a coach, the prima facie presumption is that it was occasioned by some negligence of the carrier and the burden is cast upon the carrier to rebut and establish that there has been no negligence on its part, and that the injury was occasioned by unavoidable accident or by some cause which human precaution and foresight could not have averted. [Goodloe v. Railway, 120 Mo. App. 194 .] Defendant did not attempt to show that the derailment of the cars was caused by unavoidable acc

1907When the facts are established that the plaintiff was a passenger and was injured by some such occurrence, the prima facie presumption is that the injury was occasioned by setae negligence of the carrier “and the burden is cast upon the carrier to rebut and establish that there has been no negligence on its part and that the injury was occasioned by inevitable accident or by some cause which human precaution and foresight could not have averted.” [Clark v. Railway, 127 Mo. 197 ; Goodloe v. Railway, 120 Mo. App. 194 ; Reagan v. Transit Co., 180 Mo. l. c. 144; Dougherty v. Railway, 81 Mo. 325 .]

1905There was sufficient evidence that plaintiff sustained injury from the collision of the cars; and it being admitted that there was such collision, a prima facie presumption arose that the collision was caused by negligence on the part of the carrier; and the burden was cast upon the latter to repel such presumption and to show that the injury was the result of an inevitable accident, or some cause which human precaution and foresight could not have averted. [Clark v. Railway, 127 Mo. 197 ; Lemon v. Chanslor, 68 Mo. 340 ; Furnish v. Railway, 102 Mo. 438 .] The plaintiff before she embarked on d

1890Lemon v. Chanslor, 68 Mo. 340 ; Coudy v. Railroad, 85 Mo. 79; Hipsley v. Railroad, 88 Mo. 348 .

2023Reed, 502 S.W.3d at 87 (quoting Anderson, 79 S.W.3d at 430 ); accord Duren v. Missouri, 439 U.S. 357, 364 (1979).

2020Adams, 76 Mo. at 355-58 .