Panke v. Shannon , 357 Mo. 1195 ( 1948 )

ON MOTION FOR REHEARING OR TO TRANSFER. On motion for rehearing or to transfer to the Court en Banc, plaintiff says that we have misinterpreted his theory of recovery. Plaintiff says this was that "Clinton was negligent in applying the twitch at all to the mule without notice to plaintiff, who had his back turned to him, together with the negligent manipulation of the twitch until it caused pain to such extent that the mule fought back vigorously and injured both plaintiff and Clinton." Even this statement shows that his real complaint is improper use of the twitch and not merely the fact that Clinton used it or did so without notice to plaintiff. In any event, plaintiff had the burden to prove that the use of the twitch caused the mule to kick and plaintiff failed to produce substantial evidence on that issue. In short, plaintiff's evidence does not show whether the use of the twitch caused the mule to kick or to stop kicking.

Therefore, the motion for rehearing or to transfer is overruled. All concur.