(concurring).
I concur fully in the principal opinion but would go farther and disapprove the entire second paragraph of Instruction B because it is argumentative, repetitious and incomplete, and is likely to be confusing and misleading. The paragraph to which I refer reads as follows:
“You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the evidence in the case that the defendant was not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.”
That this paragraph is likely to be confusing and misleading is indicated by the growing number of cases in which it has been questioned, criticized or distinguished.
The subject that it attempts to deal with is sufficiently and better covered by the plaintiff’s verdict-directing instruction No. S which instructs the jury “that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant St. Louis Public Service Company, a Corporation, was negligent, and you may so find unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to defendant’s negligence, * * Italics supplied. Instruction 5 from which this quotation is taken is in the form suggested in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1004. It has been almost uniformly used as the plaintiff’s principal instruction in a res ipsa loquitur case and has never been seriously questioned.
The thought expressed in the italicized part of instruction 5 is twice repeated in instruction B. I think this repetition is unnecessary and improper. Furthermore, the second repetition directs a verdict for the defendant without hypothesizing any facts. *907As a verdict-directing instruction, it is incomplete.
Defendant’s instruction No. 6 attacks and converses the plaintiff’s basic premise; it instructs the jury “if you further find that said streetcar did not jerk and jolt in a sudden and unusual manner, then your verdict should be for the defendant.” If the defense had conceded the unusual movement of the streetcar and sought to excuse it as being caused by an emergency application of the brakes to avoid a collision of some sort, the defendant would have been entitled to an instruction on that theory which would have had to incorporate the hypothesis that the defendant was not negligent in so doing. It would seem that these two kinds of instructions and plaintiff’s instruction gives the defendant all that it is entitled to on the merits and all that is contemplated by the second paragraph of instruction B which in effect tells the jury that if it finds “that the defendant was not negligent,” then its verdict should be in favor of the defendant.
The paragraph complained of can hardly be said to have a proper place in a burden of proof instruction. As stated in Stumpf v. Panhandle Eastern Pipeline Company, 3S4 Mo. 208, 189 S.W.2d 223, 229 [13], an instruction of this kind is argumentative and cautionary in nature. It also directs a verdict on what purports to be a statement of a rule of law without stating facts upon which the finding is to be made. This was condemned in Harke v. Haase as well as in later cases.
A burden of proof instruction in the usual and accepted form should be sufficient even in a res ipsa loquitur case because McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, has held that the burden of proof in a res ipsa loquitur case is the same as in any other.
This court should seize every opportunity to eliminate jury argument from instructions. Permitting argumentative instructions to be given is perhaps the greatest single weakness in our instruction practice.
I think we should stop temporizing with this and other “mere fact” situations. I would disapprove of the second paragraph of instruction B in its entirety.