(concurring). — The theory of the appellant in
this court is that the pilot’s negligence and carelessness in the handling of the airplane by permitting it to lurch, jerk and move about through the air in a violent and unusual manner caused her to be thrown out of her seat and injured. The pilot could only be negligent in the operation of the airplane, under the res ipsa loquitur rule, and could not be negligent for the maintenance of the airplane as the airplane was not under his exclusive control. This is the theory upon which the majority opinion was written. I, therefore, concur with that opinion.
However, I think that if the appellant was using her seat belt, as she testified, a res ipsa loquitur rule against the Midcontinent Airlines would apply if she were thrown from her seat. If a passenger is strapped in her seat by the seat belt and is thrown from her seat and injured, then, in my opinion, the jury could say that such an occurrence is one that “does not ordinarily happen if those in charge use due care.” McCloskey v. Koplar, 329 Mo. 527, l.c. 533, 46 S. W. 2d 557, 92 A.L.R. 641. If this had been the appellant’s theory of her case, I believe a res ipsa loquitur ease would have been made for the jury [668] even if the airplane was caused to jerk by a downdraft. I believe the jury could say that the injury ivas caused by a defective belt or seat.
PER CURIAM.The opinion of Barrett, C. is modified on the court’s own motion by striking out the words “accordingly the judgment is affirmed”, and by adding the following: Since there are some circumstances shown by the record in this case from which inferences of specific negligence might be drawn and since this is the first time in which this court has held that the doctrine of res ipsa loquitur does not apply where a passenger in an airplane has been injured under such circumstances as those shown by the record in this case, the judgment is reversed and the cause remanded so *932that plaintiff may plead specific negligence, if she is so advised. As modified the opinion is adopted as the opinion of the court.
Ellison, Hollingsworth, 'Dalton, and Leedy, JJ., and Gonhling, G. J., concur; Hyde, J., not sitting; Tipton, J., concurs in separate opinion filed.