(2) The petition charged specific acts of negligence. Pointer v. Ry. Const. Co., 269 Mo. 104; Hennekes v. Beetz, 203 Mo. App. 63. (3) Plaintiff made a prima-facie case against the Southwestern Bell Telephone Company, and there was no error in overruling this appellant's demurrer to the evidence.
Raftery v. P. W.V. Railroad, 131 A. 470; N.O. N.E. Railroad v. Harris, 247 U.S. 367; N.Y.C. Railroad v. Winfield, 244 U.S. 147; Patton v. T. P. Railroad Co., 179 U.S. 658. If inference, presumption and res ipsa loquitur (or either of them) were permissible in Federal Employers' Liability actions, they could not be invoked in this case for the reason that plaintiff pleaded a specific act of negligence. Duffy v. McGee, 196 Mo. App. 399; Hennekes v. Beetz, 217 S.W. 533; Grimm v. Globe Printing Co., 232 S.W. 676. Even if applicable, the doctrine would not solve this case.
Thuringer v. Traston, 144 P. 866; Burch v. S.P. Co., 32 Nev. 75. Res ipsa loquitur cannot apply when facts are observed and testified to. Then there is no occasion for inference. Baldwin v. Smitherman, 88 S.E. 854; Hennekes v. Beetz, 217 S.W. 533. Being successful in lower court, we should have evidence considered as proved, under elemental rule that where evidence conflicts, findings will not be disturbed.
(a) The allegations of plaintiff's petition constitute allegations of specific negligence. Pointer v. Mountain Ry. Const. Co., 269 Mo. 114; Davidson v. Transit Co., 211 Mo. 361; Kean v. Piano Co., 206 Mo. App. 173; Hennekes v. Beetz, 217 S.W. 533; Motsch v. Standard Oil Co., 223 S.W. 677; Roscoe v. Met. St. Ry. Co., 202 Mo. 587; McGrath v. Transit Co., 197 Mo. 97; Orcutt v. Century Bldg., 201 Mo. 424; Price v. Met. St. Ry. Co., 220 Mo. 453. (b) Plaintiff tried her case upon the theory that specific negligence had been alleged, and that the burden rested upon her to prove it. Plaintiff's instructions submitted the case upon the theory that specific negligence had been alleged, and she assumed the burden of proof.
On the other hand we find a long line of decisions to the effect that skidding may occur without fault and does not necessarily imply negligence. See the case of Philpot v. Fifth Avenue Coach Co., 142 App. Div. (N.Y.), 811, 128 N.Y. Supp., 35, and Hennekeo v. Beetz, 203 Mo. App., 63, 217 S.W. 533. From Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A.L.R., 665, we quote the first paragraph of the syllabus:
She was entitled to recover on no other theory. [West v. Holladay, 196 S.W. 403; Boeckman v. Valier Spries Milling Co., 199 S.W. 457; Hennekes v. Beetz, 217 S.W. 533, 203 Mo. App. 63; Abernathy v. Lusk, 182 S.W. 1049.]
Latapie-Vignaux v. Askew Saddlery Co., 193 Mo. 1. (10) In cases where specific negligence is alleged in the plaintiff's petition he must, in order to succeed, prove one or more assignments of negligence set forth in his pleadings, and cannot recover on the res ipsa loquitur doctrine. Motsch v. Standard Oil Co., 223 S.W. 677; Hennekes v. Beetz, 203 Mo. App. 63. (11) Even in cases where the plaintiff pleads general negligence only in his petition he will estop himself from invoking or relying on the doctrine of res ipsa loquitur, if, by his evidence, he proves specific acts of negligence. McAnany v. Shipley, 189 Mo. App. 396; Cook v. Union Electric L. P. Co., 232 S.W. 248. (12) An objection to the erroneous admission of incompetent or immaterial evidence is not waived by the introduction of rebutting evidence by the objecting party although his evidence may be of the same kind objected to.
The law is universal to this effect. Berry on Automobiles (4 Ed.), sec. 231, pp. 227, and 228; Barrett v. U.S. Railroad Adm., 194 N.W. 222; Orthwein v. Droste, 191 Ky. 17, 228 S.W. 1028; Burke v. Cook, ___ Mass. ___, 141 N.E. 585; Kelleher v. Newburyport, 227 Mass. 462, 116 N.E. 806, L. R.A. (1917) 710; Loftus v. Pelletier, 223 Mass. 63, 111 N.E. 712; Williams v. Holbrook, 216 Mass. 239, 103 N.E. 633; Philpot v. Fifth Avenue Coach Co., 142 A.D. 811, 128 N.Y.S. 35; Rango v. Fennell, 168 N.Y.S. 646; Klein v. Beeten, 169 Wisc. 385, 172 N.W. 736, 5 A.L.R. 1237; Sullivan v. Lutz, ___ Wisc. ___, 194 N.W. 25; Linden v. Miller, 172 Wisc. 20, 177 N.W. 909; Hennekes v. Beetz, 203 Mo. App. 63. (2) It is universal law that even in a case where the doctrine of res ipsa loquitur, or, in other words, the presumption of negligence, is available to the plaintiff, such presumption is actually dispelled and removed entirely from the case if the plaintiff goes into the matter and shows the facts concerning the cause of the injury, and such facts show the cause not to have been a negligent one. Price v. Met. Street Ry. Co., 220 Mo. 435; Cook v. Union Elec. L. and P. Co., 232 S.W. 248; Price v. Met. Street Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am. St. Rep. 588; Cassady v. Street Ry. Co., 184 Mass. 156, 68 N.E. 10, 63 L.R.A. 258; Lyon v. Railway Co., 50 Mont. 532, 148 P. 386; Dentz v. Railway Co., 75 N.J.L. 893, 70 A. 164; Fitzgerald v. Goldstein, 56 Misc. 677, 107 N.Y.S. 614; Cook v. Newhall, 213 Mass. 392, 101 N.E. 72; McAnany v. Shipley, 189 Mo. App. 396. (3) The doctrine is illustrated by the holding of the courts in all of those cases where the plaintiff might otherwise utilize
McDonald v. Railroad, 165 Mo. App. 75. (7) Where plaintiff alleges the specific acts of negligence causing the injury he is required to prove those specific acts and cannot rely on the doctrine of res ipsa loquitur. This is a rule of long standing in this State. Reid v. Schaff, 210 S.W. 85; Hennekes v. Beetz, 203 Mo. App. 63; Byers v. Essex Inv. Co., 281 Mo. 375; Motsch v. Standard Oil Company of Indiana, 223 S.W. 677; Boeckmann v. Valier Spies Milling Co., 199 S.W. 457; West v. Holladay, 196 S.W. 403; Roscoe v. Met. Street Ry. Co., 202 Mo. 576; Riley v. Independence, 258 Mo. 671. Harry F. Russell and Marsalek Stahlhuth for respondent.
The tools were simple and so was the appliance. McManawee v. Railroad, 135 Mo. 440, l.c. 447; Hennerker v. Beetz, 217 S.W. 533; Kellerman v. Telephone Co., 189 Mo. App. 506; Neil v. Prior, 180 S.W. 407 (Mo. App.); Miller v. Railroad, 175 Mo. App. 349; Railroad v. Burton, 211 S.W. 186. (4) The burden of plaintiff's petition is that the cable which plaintiff cut in two was old, rotten and brittle. His own witness (as well as defendant's witnesses) testified that slivers were just as liable to fly from a new cable as from this one.