res ipsa doctrine in Missouri

1964The third assignment directed to plaintiff’s instruction 1 is that it submitted the case under the res ipsa doctrine “without requiring the jury to find facts which would show that the defendant possessed superior knowledge of the occurrence * * Not having been presented by specific objection either at the time of trial or in the motion for new trial, this assignment now asserted for the first time in defendant’s brief will not be considered and ruled here. 12 However, it may be noted in passing that instruction 1 closely followed the suggestions in Harke v. Haase, 335 Mo. 1104, 1111 , 75 S.W.

1964The third assignment directed to plaintiff’s instruction 1 is that it submitted the case under the res ipsa doctrine “without requiring the jury to find facts which would show that the defendant possessed superior knowledge of the occurrence * * Not having been presented by specific objection either at the time of trial or in the motion for new trial, this assignment now asserted for the first time in defendant’s brief will not be considered and ruled here. 12 However, it may be noted in passing that instruction 1 closely followed the suggestions in Harke v. Haase, 335 Mo. 1104, 1111 , 75 S.W.

1962“We follow the res ipsa rule stated by the Supreme Court of the United States in Sweeney v. Erving, 228 U.S. 233 , 33 S.Ct. 416, 418 , 57 L.Ed. 815 , as follows: ‘Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evi-denec to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by t

1962“We follow the res ipsa rule stated by the Supreme Court of the United States in Sweeney v. Erving, 228 U.S. 233 , 33 S.Ct. 416, 418 , 57 L.Ed. 815 , as follows: ‘Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evi-denec to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by t

1952“When * * * the plaintiff pleads general negligence and by the pleading invokes the aid of the res ipsa loquitur doctrine, he does not lose or waive the benefit thereof, and the right to rely thereon in the submission of the case to the jury, by introducing evidence to show specifically the cause of the accident if by the evidence the cause is still left and remains in doubt or is not clearly shown, but where the real or precise cause is definitely shown, and is not left in doubt, ‘there is no occasion or room for the’ presumption or inference which [101] the res ipsa rule affords. ‘The plaint

1952“When * * * the plaintiff pleads general negligence and by the pleading invokes the aid of the res ipsa loquitur doctrine, he does not lose or waive the benefit thereof, and the right to rely thereon in the submission of the case to the jury, by introducing evidence to show specifically the cause of the accident if by the evidence the cause is still left and remains in doubt or is not clearly shown, but where the real or precise cause is definitely shown, and is not left in doubt, ‘there is no occasion or room for the’ presumption or inference which [101] the res ipsa rule affords. ‘The plaint

1971Co., 353 Mo. 605, 614 , 183 S.W.2d 123, 127 , a res ipsa loquitur case, wherein a division of control between plaintiff and defendant may have been present, this Court because the Federal Employers’ Liability Act was involved, followed the views of the Federal courts, and held that the “jury was privileged to find * * * that plaintiff’s control was not such as to necessarily deprive him of the benefit of the res ipsa doctrine under the Federal decisions.” The Federal view, to the effect that the question of control is for the jury, is articulated in Jesionowski v. Boston & M.

1971Co., 353 Mo. 605, 614 , 183 S.W.2d 123, 127 , a res ipsa loquitur case, wherein a division of control between plaintiff and defendant may have been present, this Court because the Federal Employers’ Liability Act was involved, followed the views of the Federal courts, and held that the “jury was privileged to find * * * that plaintiff’s control was not such as to necessarily deprive him of the benefit of the res ipsa doctrine under the Federal decisions.” The Federal view, to the effect that the question of control is for the jury, is articulated in Jesionowski v. Boston & M.

1968“In holding that the case does not come under the res ipsa rule we do not hold that respondent failed to make a submissible case. “ ‘It is important, in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence.’ • “ ‘Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.’ [38 Am.Jur., pp. 992-3, sec. 297; Elgin v. Kroger Grocery & Baking Co., 357 Mo. 1

1968“In holding that the case does not come under the res ipsa rule we do not hold that respondent failed to make a submissible case. “ ‘It is important, in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence.’ • “ ‘Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.’ [38 Am.Jur., pp. 992-3, sec. 297; Elgin v. Kroger Grocery & Baking Co., 357 Mo. 1

1968“In holding that the case does not come under the res ipsa rule we do not hold that respondent failed to make a submissible case. “ ‘It is important, in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence.’ • “ ‘Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.’ [38 Am.Jur., pp. 992-3, sec. 297; Elgin v. Kroger Grocery & Baking Co., 357 Mo. 1

1968“In holding that the case does not come under the res ipsa rule we do not hold that respondent failed to make a submissible case. “ ‘It is important, in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence.’ • “ ‘Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.’ [38 Am.Jur., pp. 992-3, sec. 297; Elgin v. Kroger Grocery & Baking Co., 357 Mo. 1

1964In the case of Adam Hat Stores v. Kansas City, Mo.Sup., 316 S.W.2d 594 , we held the res ipsa doctrine applicable in an action for damages resulting from the breaking of a water main.

1964In the case of Adam Hat Stores v. Kansas City, Mo.Sup., 316 S.W.2d 594 , we held the res ipsa doctrine applicable in an action for damages resulting from the breaking of a water main.

1962“We follow the res ipsa rule stated by the Supreme Court of the United States in Sweeney v. Erving, 228 U.S. 233 , 33 S.Ct. 416, 418 , 57 L.Ed. 815 , as follows: ‘Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evi-denec to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by t

1962“We follow the res ipsa rule stated by the Supreme Court of the United States in Sweeney v. Erving, 228 U.S. 233 , 33 S.Ct. 416, 418 , 57 L.Ed. 815 , as follows: ‘Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evi-denec to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by t

1962Louis Court of Appeals had no difficulty in discovering and no hesitancy in stating that “the Stolle case has been overruled by the Maybach case.” Stephens, supra, 232 S.W.2d loe. cit. 187.

1959Louis, Mo.App., 232 S.W.2d 181, 187 ]; and, it is on the latter basis that instant plaintiff pleaded, tried and here presents her case.

1958And the law of this State is also clear that if it be herein determined that the breaking of the main was an occurrence that does not ordinarily happen if those in charge use due care and the cause of the break was unknown to plaintiff, and defendant had superior knowledge of or means of information as to the cause, then such evidence was sufficient to make a prima facie showing of negligence under the res ipsa doctrine, thereby raising “a substantial factual inference of defendant’s negligence which amounts to evidence as distinguished from a mere procedural presumption, that does not disappe

1958And the law of this State is also clear that if it be herein determined that the breaking of the main was an occurrence that does not ordinarily happen if those in charge use due care and the cause of the break was unknown to plaintiff, and defendant had superior knowledge of or means of information as to the cause, then such evidence was sufficient to make a prima facie showing of negligence under the res ipsa doctrine, thereby raising “a substantial factual inference of defendant’s negligence which amounts to evidence as distinguished from a mere procedural presumption, that does not disappe

1958Co., 358 Mo. 589 , 216 S.W.2d 78, 81 .” (First bracketed insert, present writ er’s.) Adam Hat Stores, Inc. v. Kansas City, Missouri, en banc, Mo., 316 S.W.2d 594 .

1958Co., 358 Mo. 589 , 216 S.W.2d 78, 81 .” (First bracketed insert, present writ er’s.) Adam Hat Stores, Inc. v. Kansas City, Missouri, en banc, Mo., 316 S.W.2d 594 .

1958And the law of this State is also clear that if it be herein determined that the breaking of the main was an occurrence that does not ordinarily happen if those in charge use due care and the cause of the break was unknown to plaintiff, and defendant had superior knowledge of or means of information as to the cause, then such evidence was sufficient to make a prima facie showing of negligence under the res ipsa doctrine, thereby raising "a substantial factual inference of defendant's negligence which amounts to evidence as distinguished from a mere procedural presumption, that does not disappe

1958And the law of this State is also clear that if it be herein determined that the breaking of the main was an occurrence that does not ordinarily happen if those in charge use due care and the cause of the break was unknown to plaintiff, and defendant had superior knowledge of or means of information as to the cause, then such evidence was sufficient to make a prima facie showing of negligence under the res ipsa doctrine, thereby raising “a substantial factual inference of defendant’s negligence which amounts to evidence as distinguished from a mere procedural presumption, that does not disappe

1949Gordon v. Muehling Packing Co., 328 Mo. 123 , 40 S.W.2d 693 , was a res ipsa case, and the relation between the parties was that of master and servant.

1949Gordon v. Muehling Packing Co., 328 Mo. 123 , 40 S.W.2d 693 , was a res ipsa case, and the relation between the parties was that of master and servant.

2004Id. *429 The evidence at trial was undisputed that Eversole’s Thunderbird was destroyed by a fuel fire which erupted in the engine area.

1993Id. 286 N.Y.S. at 120 .

1993Id. 286 N.Y.S. at 120 .

1993Swan cites the following three cases: Beaudoin v. Watertown Memorial Hosp., 32 Wis.2d 132 , 145 N.W.2d 166 (Wis.1966), presented, as in the case at bar, the single issue of whether res ipsa should apply.

1993Swan cites the following three cases: Beaudoin v. Watertown Memorial Hosp., 32 Wis.2d 132 , 145 N.W.2d 166 (Wis.1966), presented, as in the case at bar, the single issue of whether res ipsa should apply.