dissenting.
I respectfully dissent.
The majority holds that the plaintiffs made a submissible case. I agree. Because I believe the verdict director submitted to the jury substantially and prejudicially misdirected the jury’s deliberations, I would reverse the trial court’s judgment and remand for a new trial.
Jury instructions are the means by which courts inform the jury as to the factual elements it must find to determine liability in a civil case. Instructions are important because they channel the jury’s deliberations. This channeling function assures the parties that the process by which the jury considers the evidence conforms with the requirements of the law. Unless a jury finds each of the essential factual elements that comprise a cause of action in the plaintiffs favor, the defendant prevails in a case. For this reason, “[i]t is ... error for an instruction to assume a disputed fact” Spring v. Kansas City Area Transp. Auth., 873 S.W.2d 224, 226 (Mo. banc 1994).
Here, the plaintiffs case depended on the jury finding that the defendant bank was negligent. The jury was instructed that negligence means “that degree of care that an ordinarily careful and prudent person-would use under the same or similar circumstances.” MAI 11.02.
As used in Instruction No. 5, a finding of negligence is a two-step process. The jury must first find that the defendant bank accepted a duty to these plaintiffs — the promise to keep the musical instruments safe— and breached that duty — by failing to move them or cause them to be moved.
The defendant’s evidence claimed that but for two unexpected and intervening events— the breaking free of the propane tanks and the subsequent demand by authorities that bank employees abandon their efforts to keep pumps running at the bank because of the danger posed by the propane tanks — the bank’s plan for keeping the instruments safe in the vault would have met with the appropriate standard of care.
The problems with Instruction No. 5 are two-fold. First, the instruction assumes that moving the instruments was the only course a reasonably eareful and prudent person would undertake under the circumstances known to the bank as it made its plans for dealing with the flood. The instruction thus left the jury to conclude that damage alone proved negligence since by all accounts the bank did not move the instruments.
The essence of the bailment at issue in this case is the bank’s safekeeping and return of the plaintiffs property. The bank may *465choose the manner by which it meets its duty to keep the instruments safe. The proper factual question facing the jury was not whether the bank moved the instruments but whether the bank breached its duty of safekeeping the plaintiffs' property. Instruction No. 5 failed to give the jury any frame of reference for determining when or whether the bank breached its duty to plaintiffs. Instruction No. 5 substantially and prejudicially misdirected the jury.
Second, Instruction No. 5 as submitted negated any impact Instruction No. 6 could have had on the jury. Instruction No. 6 stated:
Your verdict must be for defendant if you believe the evacuation ordered by the civil authorities on July 30 was an intervening cause of plaintiffs damages.
An “intervening cause” as used in these instructions means a new and independent force which so interrupts the chain of events that the result is no longer the natural and probable consequence of defendant’s conduct and ought not have been anticipated by the defendant.
As the facts show, the bank’s sandbagging and pumping efforts were successful in keeping water below the height of the vault until the danger presented by the propane tanks made it impossible to keep the pumps running. A defendant is entitled to present the jury with an instruction that hypothesizes facts that support its defense. Spring, 873 S.W.2d at 226. By assuming that only by moving the instruments from the vault could the bank meet the standard of care, Instruction No. 5 made any discussion of intervening cause at least irrelevant and probably confusing to the jury.
It is, of course, inappropriate to complain without providing a better solution. I believe a legally correct instruction would recognize that the standard of ordinary care permitted the bank to choose any option that would keep the instruments safe and would permit the jury to consider whether the bank’s plans for keeping the instruments safe were reasonable but for the unexpected events surrounding the propane tanks. The instruction should have read:
Your verdict must be for the plaintiff if you believe:
First, that plaintiffs delivered a J.B. Guadagnini violin and a mandolin in an undamaged condition to defendant for safekeeping and storage, and
Second, defendant failed to provide a safe place for plaintiffs’ instruments, and
Third, defendant was thereby negligent, and
Fourth, as a direct result of such failure, plaintiff sustained damage,
Unless you believe plaintiffs are not entitled to recover by reason of Instruction No. 6.
This instruction far more carefully channels the jury’s deliberations than the instruction actually given. It does not assume that the bank’s only possible course of action was to move the instruments, but permits the jury to find that failure to move the instruments breached the standard of care.
I would reverse and remand for a new trial.