Savery v. Kist

I concur in the result reached by the majority but do not believe the doctrine of res ipsa loquitur applies. The petitions alleged that defendant "permitted said tractor and trailer * * * to operate without a driver or person in control in and upon the alleys and streets * * * [and] up against and into a certain business building * * *."

The pleader was not content to allege generally the mere happening of the accident, allowing it "to speak for itself." He added the allegation that the vehicle was being operated "without a driver or person in control." I think such operation of a vehicle upon a public street is itself an act of negligence. The pleader was not relying on "res ipsa." He pointed out the very negligence relied on. Proof of such operation was direct proof of negligence. It made a prima facie case when coupled with proof that as a result plaintiff was injured. No resort to the doctrine of res ipsa loquitur is either proper or necessary to sustain the decision of the trial court.

I therefore dissent from Division I of the opinion and concur in the rest and in the result.