Wise v. St. Louis Public Service Co.

HYDE, Judge

(concurring).

I concur in the result because I think defendant was entitled to have a burden of proof instruction such as Instruction B given in this res ipsa loquitur case, in which the main instruction given at plaintiff’s request told the jury that the facts of the occurrence therein hypothesized (“sudden and unusual jerk and jolt”) “are sufficient circumstantial evidence to warrant a finding * * * that the defendant * * was negligent.” (It also used the word “occurrence” as descriptive of the incident resulting in plaintiff’s injuries.) I do not agree that the second sentence of Instruction B is improper. In fact, the principal opinion say's, if it “is considered in its em-tirety, it is not a misstatement of the law.” However, it also says the first portion is a misstatement of the law unless the last portion “is given full effect in connection with the first portion.” Is there any reasonable basis for not doing so? Of course, any clause taken out of context and considered alone would not likely be adequate to express any intended concept. I can see no basis for refusing to consider a sentence of an instruction as a whole, especially when there is nothing self-contradictory in it and when so considered it is a correct statement of the law. It is our well-settled rule that even separate instructions are construed together as a whole and if, when so considered, they properly state the law, that is sufficient. (See the many cases cited under Trial <⅞=’ number 295(1) (2) West’s Missouri Digest.)

Perhaps the term “mere fact” may not be be the best term to express the intended meaning although I think the definitions of “mere” set out in the principal opinion show it was not erroneous to use it in the way it was used in Instruction B. How*908ever,, I would suggest that such language as “from only the fact of the occurrence” might be better. It might even be better to reverse the first two clauses of Instruction B so that the last sentence would read: “If you find and believe from all the evidence in the case that the defendant was not negligent, you should not find that the defendant was negligent from only the fact of the ■occurrence shown by the plaintiff’s evidence, 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.” (For the word “only” emphasized above, the word “solely” might be used or the term • “from the fact alone” might be substituted.)

I do not agree that any part of the second sentence is improper or could make the instruction argumentative or confusing. The fact of the occurrence is not conclusive of negligence. “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 the jury, not that they forestall the verdict.’ See McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Cruce v. Gulf, Mobile & O. R. Co., 358 Mo. 589, 216 S.W.2d 78; Jesionowski v. Boston & M. R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416.” Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 590. Therefore, I think defendants in res ipsa cases should have the benefit of this kind of burden of proof instruction.