dissenting. I concur in all the majority opinion except that part relating to Point IV. As to that point, I think the failure to give AMI 605 was reversible error. In order to put the matter in proper perspective, the' wording of the instruction offered is of considerable importance as is the wording of Instruction 12 given on res ipsa loquitur, which was patterned after AMI 610. They read:
Defendant’s Requested Instruction — AMI 603
The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.
Instruction No. 12: In addition to the rules of law I have just stated with respect to ordinary care and negligence, there are situations in which a jury may, but is not required to, draw an inference of negligence from the manner in which the alleged injury occurred. J. D. Markley and Marie Markley attest that this case involves such a situation, and therefore, have the burden of proving each of the two essential propositions.
First, that the alleged injury was attributable to the truck and dual wheels which have been under the exclusive control of the defendant, Mrs. Joel Lambert doing business as Lambert Seed Company or her employees.
Second, that in the normal course of events, no injury would have occurred if the said defendant had used ordinary care while the truck and dual wheels were under her exclusive control.
If you find that each of these two propositions has been proved by the plaintiffs, then you are permitted, but not required, to infer that the defendant was negligent. (Emphasis mine.)
Just how there is a conflict between these instructions escapes me, and no one has offered any plausible explana-don. A simple reading of the two together (with particular reference to the pordons of the res ipsa loquitur instruction I have underscored) clearly demonstrates that not only is there no conflict, but the two are completely harmonious and could not cause any confusion. This clearly suggests that the drafters of AMI 603 and 610 prepared them so they could be given without conflict. If they had thought AMI 603 should not be used where a case for the application of res ipsa loquitur arose, it is indeed strange that no caution was given in the “Note of Use” as was frequently done in such circumstances and as was done with respect to AMI 603 in reference to cases when Ark. Stat. Ann. § 75-623(c) (Repl. 1957) is applicable. To infer that these experienced, dedicated, alert and perceptive judges and practitioners were aware of a potential conflict with this statute, but unconscious of the implications of AMI 610, which with AMI 603 and fourteen other model instructions form “Chapter 6, Specific Factors Affecting Negligence and Defenses,” seems absurd to me.
A look at the basis for the two instructions will lead to the conclusion that there is no conflict. AMI 603 is based upon such cases as St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W. 2d 975 and International Harvester Co. v. Hawkins, 180 Ark. 1056, 24 S.W. 2d 340. In Ward, the rule was articulated. We said:
Negligence is never presumed but the burden is on the party asserting it to establish the fact by a preponderance of the evidence. Nor is it to be presumed from the fact of injury and no one is liable in damages for a purely accidental injury.
In Hawkins, we said:
It is next contended by the appellant that negligence cannot be inferred merely from the injury. This is also a rule of law so well established that we need not cite authorities in support of it. While negligence cannot be inferred merely from the injury, negligence may be inferred from facts shown in evidence. And the facts here are sufficient to justify the jury under proper instructions to find that the appellant was guilty of negligence and that this negligence caused the injury.
Thus the drafters of AMI 603 demonstrated quite clearly by their citation of these two cases that the mere fact that negligence might be inferred from the facts in evidence would not preclude the giving of this instruction. See also, Great Atlantic & Pacific Tea Co. v. Gwilliams, 189 Ark. 1037, 76 S.W. 2d 65, wherein it was said that negligence, or facts from which it may be inferred, must be proved. In other words, negligence must be proved, either by direct or circumstantial evidence.
But what does AMI 610 say? It says that if the jury finds that the requisite facts are shown, it is permitted but not required to infer that the defendant was negligent. This is a positive indication that the two instructions, drafted with Hawkins in mind, were intended to be, and are, harmonious, and that AMI 603 should be given, even if the case goes to the jury on res ipsa loquitur alone. Before a jury is even permitted to infer that there was negligence from the fact of injury, it must first find that the thing which produced the injury was under the exclusive control and management of the defendant and that the occurrence is such that, in the ordinary course of events, does not happen, if due care has been exercised. Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S.W. 2d 885. In Martin v. Aetna Casualty and Surety Co., 239 Ark. 95, 387 S.W. 2d 334, we pointed out that evidence showing that there was an injury to a defendant to whom the plaintiff owed a duty of using due care, that the injury was caused by an instrumentality under the control and management of the defendant and that the accident causing the injury was such that in the ordinary course of things would not occur if those having control and management used proper care, in the absence of evidence to the contrary, would be “evidence that the accident occurred from the lack of that proper care.” Thus, the fact of injury is not evidence of negligence, even in a res ipsa case. It is only one of the circumstances essential to the permissible inference, and is to be considered along with other evidence.
Examination of the purpose and function of the doctrine of res ipsa loquitur confirms my position and the requirements of AMI 610. Negligence may be proved by circumstantial, as well as direct, evidence. Res ipsa lo-quitur is nothing more than one type of circumstantial evidence. Prosser, Torts (Fourth Edition) 213, 228, §§ 39, 40; Restatement of the Law, Torts Second, p. 157, § 328D, Comment b; Leflar and Covington, Res Ispa Loquitur in Arkansas, 8 Law School Bulletin 43. In order to make a circumstantial case, not only must the injury be shown, but there must be evidence of the requisite attendant circumstances. See above authorities and Prosser, pp. 214, 218, § 39.
I will not elaborate extensively on the distinction between the admonition against use of AMI 603 in cases where Ark. Stat. Ann. § 75-623(c) is involved and res ipsa loquitur. Of course, res ipsa loquitur is not a statutory declaration. It does appear, however, that the statute in question goes beyond the permissible inference arising from a showing of the elements under which res ipsa lo-quitur may be invoked. Prima facie evidence in the sense of that statute seems to imply that a presumption or compelled inference arises when the requisite facts are shown, unless there is evidence to the contrary. In this respect, the statute should have the same application as, for instance, former Ark. Stat. Ann. § 73-1007 (Repl. 1957), which was held to establish a rebuttable presumption of negligence which applied in the absence of contrary evidence. Missouri Pacific R. Co. v. Briner, 213 Ark. 18, 209 S.W. 2d 106. Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 132, 150. On the other hand, when res ipsa loquitur applies, the inference is only permissible and a jury is free to hold against a plaintiff, even though the defendant does not introduce any evidence. See Barn-hart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 133.
Although I firmly believe that AMI 603 should have been given even if the evidence had not justified the submission of the question of negligence based upon direct evidence of specific acts or omissions, the submission of the case on both approaches, i.e., res ipsa loquitur and specific negligence, seems to me to have required that it be given. This instruction negates the all too prevalent thought that if injury occurs someone should pay. If a plaintiff chooses to enter the arena of the courtroom riding both res ipsa (circumstantial evidence) and specific acts of negligence (direct evidence), there is no reason why a defendant should be penalized by being deprived of any protective device he would otherwise have against either.
I respectfully submit that the judgment in this case should be reversed for refusal of appellant’s requested instruction based on AMI 60S.