(1) The res ipsa loquitur rule does not apply in favor of a passenger riding in a motor car when it skids off the road and causes injury to the passenger. Polokoff v. Sanell, 52 S.W.2d 443; Heidt v. People's Motor Bus Co., 219 Mo. App. 683, 284 S.W. 840; Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W.2d 898; Klein v. Belten, 172 N.W. 736; Ferrell v. Solski, 278 Pa. 565, 123 A. 493; Linden v. Miller, 172 Wis. 20, 12 A.L.R. 665, 177 N.W. 909; Wobosel v. Lee, 243 N.W. 425; Winslow v. Tibbetts, 162 A. 785. The rule of necessity does not require that the guest in an automobile be permitted to invoke a presumption of negligence against the driver in case of an accident.
(1) Where a plaintiff pleads res ipsa loquitur, but proves what caused the accident, he loses the benefit of the doctrine. Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932; Conduitt v. Trenton Gas Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Taylor v. Prudential Ins. Co. of America, 234 Mo. App. 317, 131 S.W.2d 226; Polokoff v. Sanell, 52 S.W.2d 443; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo. App. 683, 284 S.W. 840; Cook v. Union Electric L. P. Co., 232 S.W. 248; McAnany v. Shipley, 189 Mo. App. 396, 176 S.W. 1079. (2) This rule has been applied in an action brought by a passenger against a carrier for injuries suffered by the former in a collision.
(1) The court erred in giving the court's instruction numbered 1 for the reason that said Instruction 1 submitted plaintiff's case to the jury under the doctrine of res ipsa loquitur or the rule of general negligence, whereas plaintiff's evidence showed the precise cause of the accident in question and, therefore, plaintiff was not, under the law, entitled to have his case submitted to the jury on such theory. Conduitt v. Trenton Gas and Electric Co., 326 Mo. 133, 31 S.W.2d 21; Berry v. K.C. Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825; Heidt v. People's Motor Bus Co. of St. Louis, 219 Mo. App. 683, 284 S.W. 840; Tate v. Western Union Tele. Co., 336 Mo. 82, 76 S.W.2d 1080; Powell v. St. Jos. Ry., L.H. and P. Co., 336 Mo. 1016, 81 S.W.2d 957; Lochmoeller v. Kiel, 137 S.W.2d 625; Axon v. K.C. Pub. Serv. Co., 142 S.W.2d 342. (2) The court erred in giving the court's Instruction 2 for the reason that said Instruction 2 submitted plaintiff's case to the jury under the doctrine of res ipsa loquitur or the rule of general negligence, whereas plaintiff's evidence showed the precise cause of the accident in question and, therefore, plaintiff was not, under the law, entitled to have his case submitted to the jury on such theory. See same authorities as cited under Point (1). (3) The trial court erred in not sustaining defendant's motion for new trial for the reason that plaintiff made no submissible case for the jury under the doctrine of res ipsa loquitur or the general negligence rule, under which the court submitted plaintiff's case to the jury in the court's instructions 1 and 2 because plaintiff'
(1) Plaintiff abandoned the res ipsa loquitur case pleaded and thereby assumed the burden of proving the specific negligence relied upon; having failed to prove such negligence, defendant's demurrer to the evidence should have been sustained. Heidt v. Motor Bus Co., 219 Mo. App. 683; Cook v. Light Power Co., 232 S.W. 248; McAnany v. Shipley, 187 Mo. 396. (2) The hypothetical question propounded to witnesses Moore and Rooks was improper because the question and the answers of the witnesses assumed the following facts not in evidence: (a) That plaintiff was standing on decayed water-soaked boards; (b) That the wire in plaintiff's house with which she claims to have come in contact carried 1200 to 1800 volts of electricity.
(1) The court erred in giving Instruction 1 to the jury submitting plaintiff's case under the res ipsa loquitur doctrine for the reason that the plaintiff's evidence showed the alleged specific negligence of defendant which caused her injury and plaintiff's case should have been submitted to the jury, if at all, on such specific negligence. Hoeller v. St. Louis Pub. Serv. Co., 199 S.W.2d 7; Grimes v. Red Line Service Co., 85 S.W.2d 767, 337 Mo. 743; Berry v. Kansas City Pub. Serv. Co., 121 S.W.2d 825, 343 Mo. 474; Powell v. St. Jos. Ry., Light, H. P. Co., 81 S.W.2d 957, 336 Mo. 1016; Fuller v. St. Louis Pub. Serv. Co., 245 S.W.2d 675; Lukitsch v. St. Louis Pub. Serv. Co., 362 Mo. 1071, 246 S.W.2d 749; Riley v. St. Louis Pub. Serv. Co., 245 S.W.2d 666; Duncker v. St. Louis Pub. Serv. Co., 241 S.W.2d 64; Venditti v. St. Louis Pub. Serv. Co., 226 S.W.2d 599, 360 Mo. 42; Williams v. St. Louis Pub. Serv. Co., 245 S.W.2d 659; Lochmoeller v. Keil, 137 S.W.2d 625; Heidt v. People's Motorbus Co., 284 S.W. 840, 219 Mo. App. 683; McGrath v. St. Louis Transit Co., 94 S.W. 872, 197 Mo. 97; Dashman v. St. Louis Pub. Serv. Co., 239 S.W.2d 553. (2) The trial court erred in failing to declare a mistrial on two occasions when plaintiff improperly disclosed to the jury that the liability of defendant in this case was insured. Rytersky v. O'Brine, 70 S.W.2d 538, 335 Mo. 22; Buehler v. Festus Mercantile Co., 119 S.W.2d 961, 343 Mo. 139; Whitman v. Carver, 88 S.W.2d 885, 337 Mo. 1247; Hunt v. Gus Gillerman, 39 S.W.2d 369, 327 Mo. 887; Olian v. Olian, 59 S.W.2d 673, 332 Mo. 689; Trent v. Lechtman Printing Co., 126 S.W. 238, 141 Mo. App. 437; Hill v. Jackson, 265 S.W. 859, 218 Mo. App. 210; Allen v. Autenrieth, 280 S.W. 79. (3) The verdict of the jury in the sum of $25,000 (being greater than the maximum amount prayed for) is so grossly excessive as to indicate passion, bias and prejudice on the part of the jury against defendant and a new trial must be granted.
Plaintiff had safely alighted from the bus and was standing in the street and no longer a passenger; and the only testimony of any fault on the part of defendant was that the bus skidded into him, which act does not show negligence. Lacks v. Wells, 44 S.W.2d 154; Polokoff v. Sanell, 52 S.W.2d 443; Heidt v. People's Motor Bus Co., 284 S.W. 840; Annin v. Jackson, 100 S.W.2d 872; Bibb v. Grady, 231 S.W. 1020. (2) The court erred in giving plaintiff's Instruction 2. Said instruction erroneously predicates liability on the mere skidding of the bus.
(1) The skidding of an automobile not being presumptive of negligence on the part of the defendant driver, and there being no evidence relative to the rate of speed at which an automobile is presumed to be likely to skid, if it is on a wet, straight, level, good macadam road, with no other traffic on it, plaintiff did not make a case for the jury, and the demurrer at the close of the whole case should have been sustained. Heidt v. Peoples Motor Bus Co., 219 Mo. App. 683, 284 S.W. 840; Polokoff v. Sanell, 52 S.W.2d 443; Story v. Peoples Motor Bus Co., 327 Mo. 719, 37 S.W.2d 900; Hatch v. Robinson, 99 Pa. 141; Peters v. United Electric Rys. Co., 165 A. 773; Bartlett v. Town Taxi, 263 Mass. 215, 160 N.E. 797; Simpson v. Jones, 284 Pa. 597; Byron v. O'Connor, 153 A. 809; Tucker v. San Francisco, 290 P. 924; Springs v. Doll, 197 N.C. 240, 148 S.E. 251; Klein v. Beeten, 169 Wis. 385, 172 N.W. 736; McLain v. Railroad Co., 140 Minn. 35, 167 N.W. 349. (2) The plaintiff's theory of defendant's negligence convicts plaintiff of contributory negligence as a matter of law. Both being experienced drivers, if plaintiff knew it was not safe to drive on a straight, level wet macadam road, free from traffic, at twenty-five to thirty miles an hour, if it was not safe, and plaintiff admittedly did not protest or warn the defendant, then her proof of defendant's alleged negligence, also ipso facto, constitutes proof of plaintiff's contributory negligence as a matter of law. Fechley v.
(2) Skidding of an automobile is not in and of itself evidence of negligence. Heidt v. Motorbus Co., 284 S.W. 840; Williams v. Holbrook, 216 Mass. 239, 103 N.E. 633; Loftus v. Pelletier, 223 Mass. 63, 111 N.E. 712; Rango v. Fennell, 168 N.Y.S. 646; Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A.L.R. 665 and note. (3) The appellant has a right to the benefit of plaintiff's specific charges of negligence against the National Refining Company in so far as they are supported by the evidence in the case.
Matkevich v. Robertson, 403 Pa. 200 ( 168 A.2d 91). See also Heidt v. People's Motorbus Co., 219 Mo. App. 683 (2) ( 284 S.W. 840); Williams v. Holbrook, 216 Mass. 239 ( 103 N.E. 633, 634); Martin v. Holway, 126 Conn. 700 ( 14 A.2d 38); S.C. Jones Co. v. Yawn, 54 Ga. App. 826 (2) ( 188 S.E. 603); 1 Blashfield 680, § 749. `It is common knowledge that an automobile may skid on a slippery highway without any negligence on the part of the operator.' Atlantic Greyhound Corp. v. Franklin, 301 Ky. 867, 871 ( 192 S.W.2d 753).
Matkevich v. Robertson, 403 Pa. 200 ( 168 A.2d 91). See also Heidt v. People's Motorbus Co., 219 Mo. App. 683 (2) ( 284 S.W. 840); Williams v. Holbrook, 216 Mass. 239 ( 103 N.E. 633, 634); Martin v. Holway, 126 Conn. 700 ( 14 A.2d 38); S.C. Jones Co. v. Yawn, 54 Ga. App. 826 (2) ( 188 S.E. 603); 1 Blashfield 680, § 749. "[I]t is common knowledge that an automobile may skid on a slippery highway without any negligence on the part of the operator." Atlantic Greyhound Corp. v. Franklin, 301 Ky. 867, 871 ( 192 S.W.2d 753).