McCloskey v. Koplar , 329 Mo. 527 ( 1932 )

I concur in all that is said in the principal opinion. The ruling in Price v. Railroad, 220 Mo. 435, which was reluctantly followed in Bond v. Railroad, 315 Mo. 987, cannot be sustained on principle. The opinion, however, does not go far enough in its condemnation of the instruction with which it deals. In directing what inference of fact must be drawn from the facts hypothesized, it flagrantly invades the province of the jury. From the facts, namely, "While therein plaintiff was passing along an aisle or passageway in the balcony of said theater and . . . there was a heavy radiator in said theater adjacent to said aisle or passageway, and . . . said radiator was in possession and control of defendants, and . . . said radiator fell over and upon plaintiff and injured him as he was passing thereby," the law does not draw a conclusion of negligence. Reasonable minds might well differ as to whether negligence on the part of defendants should, or could, be inferred from such facts. All that can be said with respect to them, as a matter of law, is that negligence may properly be inferred from them, and therefore that plaintiff having produced evidence tending to establish them made a prima-facie case, that is, a case for the jury. When such a case was made the burden of going forward with the evidence devolved upon the defendants. But whether defendants did, or did not, offer evidence on their part, it was solely the prerogative of the jury to determine what inference, if any, they would draw from plaintiff's proof, without intrusion on the part of the court. [Ham v. Barret, 28 Mo. 388; Morton v. Heidorn, 135 Mo. 608, 37 S.W. 504; State ex rel. v. Ellison,268 Mo. 238, 187 S.W. 23; McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175; Sowders v. Railroads, 127 Mo. App. 119, 104 S.W. 1122; Bevan v. Hill, 262 S.W. 416.]

Generally speaking, the only distinction between ipsaloquitur cases and others is that in the former it is allowable, in order for plaintiff to make a case for the jury, to plead and prove general negligence instead of the specific negligence which caused his injury. In that distinction no warrant can be found for the court's telling the jury what evidentiary value must be attached to certain facts in proof or what inference must be drawn from them. The so-called "presumption" in such cases is ordinarily nothing more than a permissible inference of fact.

"Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence or negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict." [U.S. Sup. Ct. in Sweeney v. Erving, 228 U.S. 233.] Henwood, J., concurs in these views.