defendant to rebut presumption in Missouri

1924In cases of the character of that before us an instruction is proper which, after requiring the jury to find that the plaintiff was a passenger on the car of the defendant carrier, and stating the obligation due from the defendant to the plaintiff by virtue of the relation of passenger and carrier, tells the jurydhat if they find that the car came into collision with another car (or other object) and that plaintiff was injured thereby, then the presumption is that such collision was occasioned by some negligence of the defendant, and under the law the duty is cast upon the defendant to rebut t

1924In cases of the character of that before us an instruction is proper which, after requiring the jury to find that the plaintiff was a passenger on the car of the defendant carrier, and stating the obligation due from the defendant to the plaintiff by virtue of the relation of passenger and carrier, tells the jurydhat if they find that the car came into collision with another car (or other object) and that plaintiff was injured thereby, then the presumption is that such collision was occasioned by some negligence of the defendant, and under the law the duty is cast upon the defendant to rebut t

1924In cases of the character of that before us an instruction is proper which, after requiring the jury to find that the plaintiff was a passenger on the car of the defendant carrier, and stating the obligation due from the defendant to the plaintiff by virtue of the relation of passenger and carrier, tells the jurydhat if they find that the car came into collision with another car (or other object) and that plaintiff was injured thereby, then the presumption is that such collision was occasioned by some negligence of the defendant, and under the law the duty is cast upon the defendant to rebut t

1924In cases of the character of that before us an instruction is proper which, after requiring the jury to find that the plaintiff was a passenger on the car of the defendant carrier, and stating the obligation due from the defendant to the plaintiff by virtue of the relation of passenger and carrier, tells the jurydhat if they find that the car came into collision with another car (or other object) and that plaintiff was injured thereby, then the presumption is that such collision was occasioned by some negligence of the defendant, and under the law the duty is cast upon the defendant to rebut t

1935Louis San Francisco Railway Co. v. Daues (Mo.), 290 S.W. 425 , an instruction telling the jury that if the train on which plaintiff was riding as a passenger was wrecked by falling through a bridge, the law presumes that the wreck was caused by some act of negligence on the part of the defendant, and that before the jury can deny plaintiff a recovery the burden of proof is on the defendant to rebut this presumption of negligence and to establish to the satisfaction of the jury that the wreck was not caused by its negligence, received the approval of the court en banc.

1935But however that may be, when the instruction in terms merely shifts to the defendant the `burden' or `burden of proof' without saying more, the consensus of opinion is that, when the instruction further requires the defendant to rebut the presumption or inference of negligence by a preponderance of the evidence, it is reversible error." *Page 1126 The instruction condemned by Division One in Harke v. Haase, 75 S.W.2d 1001 , was obviously condemned on the same ground.

1934We further hold that the mere fact that one of plaintiff's witnesses saw two automobiles in the intersection was not sufficient to take the case out of the res ipsa loquitur rule, since his testimony does not definitely show what specific negligence caused the accident, under the doctrine of Conduitt v. Trenton Gas Electric Co., 326 Mo. 133 , 31 S.W.2d 21 . [2] The italicized portion of plaintiff's Instruction No. 1 is reversible error in any kind of a case under the decision of this court en banc in McCloskey v. Koplar, 329 Mo. 527 , 46 S.W.2d 557 , which holds that "when the instruction furt

1934We further hold that the mere fact that one of plaintiff's witnesses saw two automobiles in the intersection was not sufficient to take the case out of the res ipsa loquitur rule, since his testimony does not definitely show what specific negligence caused the accident, under the doctrine of Conduitt v. Trenton Gas Electric Co., 326 Mo. 133 , 31 S.W.2d 21 . [2] The italicized portion of plaintiff's Instruction No. 1 is reversible error in any kind of a case under the decision of this court en banc in McCloskey v. Koplar, 329 Mo. 527 , 46 S.W.2d 557 , which holds that "when the instruction furt

1934We further hold that the mere fact that one of plaintiff's witnesses saw two automobiles in the intersection was not sufficient to take the case out of the res ipsa loquitur rule, since his testimony does not definitely show what specific negligence caused the accident, under the doctrine of Conduitt v. Trenton Gas Electric Co., 326 Mo. 133 , 31 S.W.2d 21 . [2] The italicized portion of plaintiff's Instruction No. 1 is reversible error in any kind of a case under the decision of this court en banc in McCloskey v. Koplar, 329 Mo. 527 , 46 S.W.2d 557 , which holds that "when the instruction furt

1934We further hold that the mere fact that one of plaintiff's witnesses saw two automobiles in the intersection was not sufficient to take the case out of the res ipsa loquitur rule, since his testimony does not definitely show what specific negligence caused the accident, under the doctrine of Conduitt v. Trenton Gas Electric Co., 326 Mo. 133 , 31 S.W.2d 21 . [2] The italicized portion of plaintiff's Instruction No. 1 is reversible error in any kind of a case under the decision of this court en banc in McCloskey v. Koplar, 329 Mo. 527 , 46 S.W.2d 557 , which holds that "when the instruction furt

1930The criticised instruction is practically identical, in form and language, with an instruction of like tenor discussed and approved by this court in each of the several cases, infra, wherein the relation of passenger and carrier was established by the evidence, and the carrier's actionable liability was predicated solely upon the application of the doctrine res ipsa loquitur, under a charge or allegation of general negligence upon the part of the defendant carrier. [Price v. Street Railway Co., 220 Mo. 435 , 444, 457 et seq.; Powell v. Railroad Co., 255 Mo. 420 , 453, 458; Trowbridge v. Flemin

1930The criticised instruction is practically identical, in form and language, with an instruction of like tenor discussed and approved by this court in each of the several cases, infra, wherein the relation of passenger and carrier was established by the evidence, and the carrier's actionable liability was predicated solely upon the application of the doctrine res ipsa loquitur, under a charge or allegation of general negligence upon the part of the defendant carrier. [Price v. Street Railway Co., 220 Mo. 435 , 444, 457 et seq.; Powell v. Railroad Co., 255 Mo. 420 , 453, 458; Trowbridge v. Flemin

1929Cases cited, as showing when, and under what conditions what is termed the burden of proof shifts to defendant, to rebut the presumption of negligence may be mentioned: Bell v. Railroad, 125 Mo. App. 660 ; Goodloe v. Metropolitan Street Railway, 120 Mo. App. 194 ; Clark v. Railway, 127 Mo. 197 ; Och v. M.K.

1929Cases cited, as showing when, and under what conditions what is termed the burden of proof shifts to defendant, to rebut the presumption of negligence may be mentioned: Bell v. Railroad, 125 Mo. App. 660 ; Goodloe v. Metropolitan Street Railway, 120 Mo. App. 194 ; Clark v. Railway, 127 Mo. 197 ; Och v. M.K.

1929Cases cited, as showing when, and under what conditions what is termed the burden of proof shifts to defendant, to rebut the presumption of negligence may be mentioned: Bell v. Railroad, 125 Mo. App. 660 ; Goodloe v. Metropolitan Street Railway, 120 Mo. App. 194 ; Clark v. Railway, 127 Mo. 197 ; Och v. M.K.

1927In support of this contention it is urged that though plaintiff’s petition alleges general negligence, and relies upon the doctrine of res ipsa loquitiw, the plaintiff himself testified ‘ ‘ fully and specifically just what did cause his alleged • injury,” thus showing that the facts causing the collision-were as well within his knowledge as- that of the defendant, and therefore there was “neither room nor necessity for the presumption” of negligence which arises in collision cases where the injury of a passenger while in the carrier’s vehicle, the facts causing the injury are peculiarly within

1927In support of this contention it is urged that though plaintiff’s petition alleges general negligence, and relies upon the doctrine of res ipsa loquitiw, the plaintiff himself testified ‘ ‘ fully and specifically just what did cause his alleged • injury,” thus showing that the facts causing the collision-were as well within his knowledge as- that of the defendant, and therefore there was “neither room nor necessity for the presumption” of negligence which arises in collision cases where the injury of a passenger while in the carrier’s vehicle, the facts causing the injury are peculiarly within

1907Objection is 'made by defendant to the charge given in the instructions asked by plaintiff that “If the jury believe from the evidence that plaintiff received an electric shock while a passenger on said car (if you believe she was a passenger thereon) the presumption is that this shock was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part.” Counsel argue that “negligence on the part of the carrier cannot be presumed from the fact of an acciden

1907Objection is 'made by defendant to the charge given in the instructions asked by plaintiff that “If the jury believe from the evidence that plaintiff received an electric shock while a passenger on said car (if you believe she was a passenger thereon) the presumption is that this shock was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part.” Counsel argue that “negligence on the part of the carrier cannot be presumed from the fact of an acciden

1907Objection is 'made by defendant to the charge given in the instructions asked by plaintiff that “If the jury believe from the evidence that plaintiff received an electric shock while a passenger on said car (if you believe she was a passenger thereon) the presumption is that this shock was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part.” Counsel argue that “negligence on the part of the carrier cannot be presumed from the fact of an acciden

1907Objection is 'made by defendant to the charge given in the instructions asked by plaintiff that “If the jury believe from the evidence that plaintiff received an electric shock while a passenger on said car (if you believe she was a passenger thereon) the presumption is that this shock was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part.” Counsel argue that “negligence on the part of the carrier cannot be presumed from the fact of an acciden

1906The deceased then being lawfully on the track, and where it appeared other pedestrians walked, he was not a trespasser or negligent per se in being on the track. [Buesching v. Gaslight Company, 73 Mo. l. c. 233; Eckhard v. Railroad, 190 Mo. l. c. 613, 614; Rapp v. Railroad, 190 Mo. 144 .] It is true that the presumption that the deceased was in the exercise of ordinary care at the time he was struck and killed is a rebuttable one, but the burden is on the defendant to rebut this presumption.

1873McCoy, 34 Mo., 531 .) The burden of proof of course is held by this court to be on the defendant to rebut the presumption of sanity which exists in all cases until the contrary is made to appear.