On Motion for Rehearing or Transfer
PER CURIAM.Defendant-respondent seeks by its motion, timely filed after opinion, a rehearing in this court, or, in the alternative, a transfer of the case to the Supreme Court of Missouri. In our consideration of defendant’s contention on appeal that plaintiff failed to make a submissible case, we deem ourselves bound by the decision of the Supreme Court of Missouri in the case of Brindley v. Wells, 308 Mo. 1, 271 S.W. 48. The facts in that case so closely resemble those ‘submitted to the jury in this case that any effort to distinguish or differentiate appears futile. Yet, at the same time, the application of the res ipsa loquitur doctrine to the facts in the case at bar and in Brindley seems in conflict with expositions of that doctrine in the later cases of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197; Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599; Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95; and Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109.
One element of prime importance as described in these cases and necessary to invoke the doctrine is that the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care. Here, plaintiff stepped down from the level of one step to another step, which appeared from the evidence to be usual and ordinary steps, completely stationary when the bus was not in motion. No mechanical device manipulated them prior to the descent and fall of the passenger. It is true they were a part of an instrumentality (in this case, the bus) which was under the management and control of the defendant, but in no wise did they differ in design or in form from a normal set of steps. And yet, since plaintiff testified in effect, “My heel was caught”, rather than, “I caught my heel”, the res ipsa doctrine was implemented and plaintiff then was required only to prove her damages. In such a situation it is difficult to accept not only that the occurrence was extraordinary, but also that the defendant bus company had superior knowledge or means of information as to the cause of plaintiff’s fall.
Neither do the facts seem to be such as to exclude every possible hypothesis except that of defendant’s negligence. Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702, 705 [7]. Furthermore, the evidence in a res ipsa submission should be such as to reasonably exclude the negligence of the claimant as a contributing cause of the injury. Charlton v. Lovelace, supra, 351 Mo. 364, 173 S.W.2d 13, 18[5].
For the reasons given, we deem this a case that should be transferred for the purpose of re-examining the existing law as set forth and applied in Brindley v. Wells, supra. In accordance with Article 5, § 10, Constitution of Missouri, V.A. M.S., we transfer this case after opinion to the Supreme Court of Missouri for that purpose.
All concur.