Dunlap v. K.C. Pub. Serv. Co. , 234 Mo. App. 351 ( 1939 )

ON MOTION FOR REHEARING. In motion for rehearing defendant says our opinion is in conflict with the decision of the Supreme Court in the case of State ex rel. Brancato v. Trimble, 332 Mo. 315, 18 S.W.2d 4, in which the court on certiorari reviewed the record of this court in the case of Eppstein v. Brancato. This insistence is based upon the theory that "one riding in a private vehicle with which a common carrier vehicle collided was not aided by a presumption of negligence which might have been indulged in favor of a passenger in the common carrier vehicle."

In construing the language of the Supreme Court in reviewing the decision in the Eppstein case, the fact under review must be considered. Eppstein was riding in an automobile owned and operated by Brancato. The automobile collided with a bus of the Inter-State Stage Line Company and injured Eppstein. He sued Brancato and the Inter-State Stage Line Company to recover for his injuries. The Court of Appeals held Eppstein could avail himself of the res ipsa loquitur doctrine. The Supreme Court in reviewing that opinion said: "In the instant case defendant Brancato was not a common carrier. The plaintiff was only a guest. For that reason she is not not aided by a presumption of negligence. The collision in the instant case may bespeak negligence, but it does not locate the negligence."

It is not claimed in the case at bar that either plaintiff or Scott was guilty of negligence. Had plaintiff sued Scott then the rule announced by the Supreme Court would apply, but that rule does not apply in the instant case for the reason the evidence does "locate the negligence."

The motion is overruled. Sperry, C., concurs.