(dissenting) .
It seems to me that if we would adhere to the decisions that have already been made by this court we would have to reverse this case.
I do not see how it can be denied that a sudden and unnecessary dip of a plane may be a negligent act in that it subjects passengers to a variety of undue physical risks. A passenger might, if stand-, ing up, suffer injuries by being projected to the floor, or, as in this case, a passenger having a pot of hot liquid in his lap might be scalded when the liquid is suddenly overturned.
But of course we do not know what caused the sudden movement of the plane. Normally the pilot would know that, but the carrier did not call him as a witness by way of explanation. Normally, also, as this court said in Capital Transit Co. v. Jackson, 1945, 80 U.S.App.D.C. 162, 164, 149 F.2d 839, 841, “the passenger cannot be expected to be on the watch, either as to its [that is, the vehicle’s] management or that of other vehicles, or if a collision takes place, to account for its occurrence. Accordingly, the happening of such a collision and the surrounding circumstances may permit an inference of negligence on the part of the defendant which is sufficient to support the plaintiff’s case against a motion for directed verdict.” It is only a matter of convenience and justice whether the law should impose upon the carrier the duty of “going forward with the evidence,” or should impose upon the carrier the ultimate shifting of the burden of proof concerning the nonexistence of negligence. See Morgan, “The Law *751of Evidence, 1941-1945,” 59 Harv.L.Rev. 481, 491 (1946). I cannot say that this court is entirely unreasonable in putting the burden of going forward with the evidence upon the carrier in carrier-passenger cases.
As the authorities cited in Capital Transit Co. v. Jackson, supra, 80 U.S.App.D.C. at pages 163, 164, 149 F.2d at pages 840, 841, indicate, where all that is shown is that a sudden movement on the part of the defendant’s vehicle has caused an injury to a third person not a passenger, therein, the cases are in disagreement whether the doctrine of res ipsa loquitur is applicable so as to warrant submission of the issue of negligence to the jury. The argument is that the driver of the defendant’s vehicle is not in sole control of the situation, since it might be that he had to make a sudden movement because of the aberration of some other driver. But Chief Justice Groner in Capital Transit Co. v. Jackson has said that this argument is not applicable where the plaintiff happens to be a passenger in the defendant’s vehicle, as was true in the case at bar. In such a situation the mere happening of the accident, unexplained, may justify a jury in inferring negligence and may make it a reversible error for the trial judge to direct a verdict for the defendant.
Moreover, even were I to agree that the dip to which Mrs. Lazarus testified could have occurred without the pilot’s negligence, that it was an ordinary maneuver of the plane incident to turning its direction of flight, and that an upset of the hot liquid is merely a likely incident of air travel, this still leaves totally unanswered the alternative argument made by the plaintiff that due care required some warning by the carrier to the passenger to whom it had just served a cup of tea which was literally “scalding hot.” In either event it seems to me error to have directed a verdict for the defendant, as was done here.
Because of the possibility that Eastern Air Lines, Inc., had in its possession evidence tending to show that the sudden dip or lurch of the plane was consistent with the exercise of the applicable degree of care on its part, and merely failed to introduce such evidence because of a mistake of law in believing that the plaintiff, a passenger, had not shown enough to make out a “prima facie case” of breach of duty, I think it only fair that the defendant should be given an opportunity, at a new trial, to produce such evidence if available. I would therefore vacate the judgment for the defendant rendered pursuant to the directed verdict, and remand the ease to the District Court with instructions to take further proceedings not inconsistent with the foregoing opinion.