Meegan v. Metropolitan Street Railway Co. , 161 Mo. App. 45 ( 1912 )

ELLISON, J.

Plaintiff’s daughter, thirteen years of age, was severely injured in a collision between cars operated by defendant on its street railway in Kansas City. He claimed the collision occurred through defendant’s negligence, and brought this action for loss of the child’s services on account of her injury. He recovered a verdict for $3,000, which the trial court caused to be reduced by a remittitur to $1,500, and judgment was entered for the latter sum; whereupon defendant appealed.

The petition charged general negligence, and, connected with the evidence, made a case for the rule of res ipa loquitur. There was evidence entitling the plaintiff to the judgment of the jury on the case, and the court very properly overruled defendant’s demurrer to the evidence. Under the rule of res ipsa loquitur, as applied to this case,’ when plaintiff showed his daughter was a passenger on one of defendant’s cars and that she was injured by reason of a collision, it raised a presumption of negligence on the part of defendaant, and cast the burden of proof upon defendant to show to the jury that it was not negligent, and unless it did so show, the verdict should be for the plaintiff. [Price v. Metropolitan Street Railway Co., 220 Mo. 435.]

Plaintiff obtained an instruction in which the law was stated, in terms approved by the Price case. But it went further and added a direction for a verdict for plaintiff on a mere statement of the presumption and the burden to rebut it, without including a hypothesis that defendant had rebutted it. In other words, defendant’s attempted exculpation of itself, was ignored and a verdict directed merely on the presumption of negligence, regardless of defendant’s side of the case. The instruction, in effect, was a peremptory direction to find for plaintiff. If plaintiff wished to make an addition to the instruction in the Price case and direct a verdict, it should have included the question whether the presumption against defendant had been explained and overcome. This omission was perhaps an inadvertent oversight, but it is vital and must cause a reversal of the judgment, and remanding of the cause.

All concur.