(dissenting).
It is obvious from the record and recited testimony of the injured plaintiff, disclosed by the majority opinion, that the sudden swerving and stopping of the bus in question, resulting in plaintiff’s being thrown from her seat and injured, were due to an unknown cause. Plaintiff relied exclusively upon the application of the doctrine of res ipsa loquitur to show negligence — no actual or positive negligence being shown.
It will be conceded that plaintiff established a presumptive or prima facie case of negligence on the part of defendant’s bus operator, by virtue of the rule, res ipsa loquitur, casting upon defendant the burden of freeing itself from such imputation, if such may be established in a case of this kind. It is a general rule in this state that where a presumptive or prima facie case has been made against a defendant, it is incumbent upon defendant, to escape the effect of the doctrine, to introduce evidence to explain, rebut, or otherwise _ overcome the presumption or inference that the injury was due to its negligence. Sims et ux. v. Dallas Ry. & Terminal Co., Tex.Civ.App., 135 S.W.2d 142, 144, and cases there cited. There is some question whether the rule applies, where injury is the result of a sudden swerving or stopping of a bus on a crowded or congested street of a city. One entering an automobile may well understand that a certain amount of swerving and stopping is a necessary operation of such conveyance.
In the Sims case, recently decided by this court, the question was identical with the one presented here. In that case, after reciting the testimony of the injured plaintiff, that “the accident happened so suddenly she didn’t know anything about it until after falling on the floor of the bus * * * ”, that she “is not in a position to say what caused the bus to jerk and stop. All she knows is that she was suddenly thrown forward from her seat onto the floor of the bus, and has never been certain as to just what did happen to cause it”; and after further reciting the rebuttal testimony of the defendant’s bus operator, to the effect that “he did not stop or check the speed of the bus; that it was moving slowly when struck on the rear end by an automobile, which threw him forward against the steering wheelalso reciting the testimony of two men passengers that “an automobile was driven against the rear of the bus, throwing them against the backs of the seats in front”, Judge Looney, writing the opinion, tersely stated: “So, we think it obvious that, even if the rule res ipsa loquitur were applicable in the instant case, the burden of proof to establish negligence was not thereby shifted, and the inference or presumption of negligence, if one arose, having been rebutted by undisputed evidence, it was obligatory upon appellants to make out their case, and, having failed to produce any evidence whatever, tending to prove negligence, we do not think the court erred in directing the verdict, as was done.”
Analogous are the facts in the instant case: The injured plaintiff said: “Well, we were going along, and I was looking out of the window, the right window; I was on the right side of the bus; and all at once, the bus swerved to the right and hit the curb, and that was the last I knew. * * * when I came to myself I heard the motorman say, ‘Get the number of that car.’ ” To rebut imputation of negligence on the part of the operator in charge of the bus, if any was cast upon him by the testimony of the injured plaintiff, it must be held that the testimony of the operator and five other passengers rebutted such presumption; quoting from the majority opinion, they said she was “caused to fall by the impact of Mrs. Barton’s car and not perforce of any prior movement of the bus”. Thus, having failed to produce any evidence whatever of negligence, plaintiff failed to make out her case.
The only distinction between the Sims case, supra, and the instant case, aside from names, dates, amounts, etc., is that, in the Sims case, the sudden jerking and stopping of the street bus was caused by the impact of another automobile on the rear of the bus; while in the instant case, the *828bus was caused to swerve and stop by the impact of Mrs. Barton’s car on the side of the bus. Neither of the injured parties knew the cause of the movement of the bus, and, in both cases, the testimony is un-contradicted that the sudden and unusual movement of the busses was due to a collision with another car, and free of negligence on the part of the operator.
Obviously, the holding of the majority in the instant case is in conflict with the holding of this court in the Sims casé, and the authorities therein cited. There is no reason assigned in the majority opinion-to overturn our decision in the Sims case; and no fact is here shown to warrant a finding in conflict therewith. If, in the Sims case, the trial court correctly entered judgment for defendant, based on the failure of plaintiff to make out a case of negligence against the defendant, certainly error is glaring in the instant case. There is no negligence shown; therefore, plaintiff having failed to meet the burden resting upon her, the judgment of the court below should be reversed and judgment here rendered for defendant. So believing, I respectfully register a dissent.