I dissent in this case, and do it under opinion in Orris v. Ry. Co., 279 Mo. 1. In that case an instruction much like No. 4 in this case was condemned, but only on the theory that the very injury itself tended to show the negligence of defendant, as therein fully discussed. In that case the character (in size) of the wound to plaintiff (Orris) was a link in the proof of negligence, as we then thought, and now think. But such is not the instant case. Here there is no peculiar characteristic of the wound itself that would tend to show the alleged negligence of the defendant. The defendant cites us to two cases, Moss v. Wells, 249 S.W. l.c. 413, and Manthey v. Kellerman Contracting Company, 277 S.W. l.c. 933. Of these the Moss case really declares no law. The opinion by *Page 285 a commissioner is concurred in by one judge in toto, by another specifically as to named paragraphs and by two others in the result. It does show that the present writer agreed with LINDSAY, Commissioner, on his construction of the rule announced in the Orris case. Paragraph II of the opinion discusses the Orris case, and we agree to that discussion. This paragraph announces just what we are announcing now.
Manthey v. Kellerman Contracting Company, supra, by a four-to-three vote concurs in the construction given of the Orris case in the Moss case, supra. This therefore makes the pronouncement in Paragraph II of the Moss case the rule of law by the Court en Banc. We are correctly marked as dissenting in Manthey's case, but the 13th paragraph of the syllabi says all three of us (this writer and two others) dissented to the ruling that the giving of Instruction 5 in that case (277 S.W. l.c. 933) was not error. Speaking for the writer only, we did not dissent to that ruling. We dissented generally, and for reasons other than the court's ruling on Instruction 5. The fact is we thought that ruling was correct, and had in the Moss case agreed to a similar ruling when the Orris case rule was discussed, as it was in Manthey's case, supra.
We think the trial court erred in granting to plaintiff a new trial on the ground that defendant's Instruction 4 was error, and that the rule in Orris's case, supra, does not accord with the trial court's view of the law. In other words, the facts in this case are not the facts in Orris's case, and do not bring this case within the rule of that case. The Manthey case, supra, supports this view. We therefore dissent.