The opinion
BOND, J.
(dissenting). — The following opinion written by me in Division, with a few additions, is now filed as my dissent from the opinion adopted by the majority of this court.
Plaintiff sued the defendant for twenty-five thousand dollars for injuries sustained while riding on a scenic railway called the “Racer Dip,” operated by defendant for the transportation of persons for hire over and around double metal tracks supported by trestles and' proceeding over very steep high and low' grades so-' as to return on a circuitous course, after a trip of about three-quarters of a mile, to the starting station. Thesé tracks are situated in Forest Park Highlands, an amusement resort in St. Louis.
The cause of action stated by the plaintiff is, to-wit:
“Plaintiff further states that on or about the 8th day of May, 1910, for a valuable consideration paid defendant, they received the plaintiff into one of their conveyances or cars aforesaid,' for the purpose of conveying him therein as a passenger on and around the ‘racer dip’ aforesaid.
“That said ‘racer dip,’ the cars and track thereon were so faulty and so defectively constructed and defendants so negligently and carelessly maintained and operated the same that by reason thereof the car in which plaintiff was a passenger as aforesaid-vibrated and shook so that the plaintiff was thrown with much force against the back of the conveyance or car in which he had passage, and plaintiff’s right foot and leg were suddenly and violently thrown upwards and out *134 of said conveyance or car, thereby causing his said right foot and leg to be caught in and thrown upon and against railings, posts and uprights along and outside of said conveyance or car, through which plaintiff was greatly and permanently injured,” etc.
specific °r Negligence: Proof.S'te This pleading was either a statement of general negligence in the construction' and operation of the “car' and track” in their entirety, as would seem clearly to
be the case under the examples and definitions of general negligence contained in the following -cases: Stauffer v. Railroad, 243 Mo. l. c. 325, 326; MacDonald v. Railroad, 219 Mo. l. c. 487; Briscoe v. Railroad, 222 Mo. l. c. 113, and cases cited; or it constituted an allegation of specific negligence as is suggested in the majority opinion. If it be construed as a mere joinder of general allegations of negligence in the construction and operation of defendant’s railway, then it stands admitted, and such is the universal law, that the case made by the plaintiff entitled him to go to the jury. On the other hand, if the theory of the learned majority opinion is correct, that the foregoing allegations constituted only averments of particular and spécific negligence (which I do not concede) then the case should have gone to the jury upon the phase of the evidence presented by the testimony of plaintiff and his companion. This case presents those two alternatives, for there can be no doubt, either upon reason or authority, that the defendant owning and operating the scenic railway for the transportation of the general public for hire was engaged in a calling essentially the same as that of a common carrier of persons. [Van Hoefen v. Taxicab Co., 179 Mo. App. 600 ; O’Callaghan v. Dellwood Park Co., 242 Ill. l. c. 343, 345; Tenn. State Fair Assn. v. Hartman, 183 S. W. 735 ; Best Park & Amusement Co. v. Rollins, 68 So. 417 ; Chesapeake Beach Ry. Co. v. Brez, 39 App. D. C. 58.]
Hence the only question is whethér any phase of the evidence adduced by plaintiff tended to make a case to which the doctrine of res ipsa loquitur would be appli *135 cable under the theory that the allegations of negligence in the petition were general, or to show a state of facts giving rise to a reasonable inference of negligence on the part of the defendant in the construction and operation of its cars and track, upon the theory that the petition charged specific negligence in that respect. The testimony of the plaintiff: as to the occurrence of the injury is, to-wit:
■“Q. "What sort of a track is there on the racer dip? A. There is two tracks.
. “Q. Is it a level track? A. Part of the way it is level and part it is inclines and steep hills and short turns.
‘ ‘ Q. Louder, please. A. Inclines and steep hills and short curves and semi-circles. .
“Q. Well, you say you had passage on one of these trains on the eighth of May, 1910? A. Yes, sir.
“Q. Now, will you tell the jury if you had any accident there and how it happened? A. I was sitting in one of these cars and sitting on the right side and it started out on the run and got very near all way around and the car slackened speed and threw me forward and started up all of a sudden and threw me backward and shot up that way (indicating) and threw me to one side and threw my right foot out and caught my leg.
“Q. When your foot was thrown out, what happened to it? A. It was caught against posts or uprights or rails and alongside the track where the car was.
“Q. Now, then, did it injure your foot or leg? A. It broke my right leg about an inch and a half above the ankle and threw the leg out of place, and tore all the flesh off my leg and broke it off right up about here-(indicating) and twisted the knee.
“Q. Did the accident render you unconscious or not? A. Yes, sir.
“Q. How long were you unconscious? A. Why, right after the accident I became unconscious and I didn’t know anything until Monday evening — until the following evening.”
*136 Plaintiff also testified that he sat 'in the second seat in the second car; that there was no rail or bar to which he could hold, adding further: “Only this little dashboard or something there in front that you could hold to, but there wasn’t anything that you could reach your hands out to that we could hold on to;” that the train was sent out with no attendant and carried four passengers on that trip; that he had never ridden on one before and that he received no information from the defendant or his employees of the condition of the track or its sharp curves or steep grades, or that it was unprotected on the sides, nor of the jerking of the train, nor the danger of a ride thereon; that he paid a fare of ten cents for his .passage; that at the place of the accident the car .was slanting a little over to the side where plaintiff sat.
Plaintiff’s companion on the trip testified, to-wit:
“Q. Will you state just how he was injured? A. Yes, sir. We was on the last curve coming in and the car was running at a high speed and the car slacked up, kind of, and he was throwed up forward and the car started up at a pretty high speed again, which naturally turned him back and his right foot fell between the car and the railing, the outside railing.
“Q. Between what track? A. The railing.
“Q. Did it catch on anything on the outside? A. When the car kind of wiggled, it caught his foot.
“Q. What do you mean, 'wiggled?’ A. Well, (indicating) kind of shaked from one side to the other.
“Q. Was that shaking more violent than at any other point in the ride around the dip? ... A. The shaking was more in the last curve than at any place on the dip.
“Q. What effect, if anything, did this decreasing of the speed and then starting of the car, as you state, have on you? A. Why it threw me back, but I was just lucky enough to catch my hold there or it would have threw me — I was lucky enough to catch my hold to keep from getting thrown out of the car; then I *137 grabbed Mr. Pointer’s arm and tried to prevent him from getting hurt, but it was too late.
“Q. What curve were you approaching on it at the time of the accident? A. It was on the last curve; going in on the last curve.
“Q. Sir? A. It was on the last curve; going in on the last run.
“Q. Have you, since that time, ridden on the racer dip? A. Yes, sir; I have.
“Q. Did it decrease and increase the speed in the manner in which you state it did so on the occasion when Pointer was injured. ... A. Yes, sir; and it looks like they had the speed moré under control afterwards. .
“Q. What would you say caused Pointer to be thrown; his foot to be thrown out of the car? . . . A. Why, the rate of high speed, and then the. sudden stop. The sudden slow-down in the speed and the start-up right quick, which naturally throwed him back and threw his foot out of the ear.”
The elevation of the track and its propulsive powers were these: The trains were started on their journey by being hauled up an angle of seventy-five degrees by means of an electric-power cable. When they reached this summit the physical force was released and the trains were carried thence by gravity and the momentum acquired by the sharp descent from the point where the electric force had been released. After the trains left the highest point to which they were carried by electric power, they started over a course of rapid descents and ascents and around sharp curves. The angles of the succeeding grades ranged from forty-fiveto sixty degrees and the trains are run “at a very high rate of speed.”
The defendant’s secretary testified that he could not tell what speed it was, although it took about four minutes from the time the train started to get to the returning point. He also testified that the scenic railway was opened on the twenty-third of April and that its operation was delayed a few days on account of the snow, *138 and that the accident occurred on the eighth of May. This was the substance of his testimony.
It is apparent if the version of the occurrence’ given for the plaintiff is to be accepted as true, that he had become a passenger upon a train without any warning whatever of the care and the prudence necessary to be observed to render the trip safe and was seated in a car which 'was not furnished with any handholds which he might seize in order to withstand the shock of a sharp descent or a whirl around a curve and which ran so near the uprights or posts supporting a structure of the side that, when the train reached its last ascent and began to descend from it on a sharp curve at a high rate of speed, he was thrown first forward and then backward by a sudden jerk so powerful as to throw his foot outside the car and cause his leg to be struck by the upright or post which supported the horizontal guard on which the side wheels of' the train ran.
As to the force and suddenness of the jerk, the testimony of the companion is that it was so great as to cause the injury as described in plaintiff’s testimony, and to prevent him from catching hold of plaintiff in time to save him from injury.'
usual and occurrences. There can be only two ways of looking at such a jar or sudden jerk of the train, which are: First, that it was an ordinary occurrence, or second, an extraordinary and unusual happen-mg. If it were the former, then it constituted a sufficient basis for a rational inference of defective construction of the car, in that it was not provided with a handhold nor sufficiently elevated at its sides, or that it ran too close to the outside posts and that such imperfections implied negligence ón the part of defendant in providing cars and tracks of such a character as to inflict injury upon passengers in their normal operation. Hence upon the theory that the petition alleged specific negligence as to the construction and operation of its railway, the plaintiff did *139 make a case from which the jury were entitled to infer the very specific negligence averred.
If, however, we take the other view that the jerk or jar was an extraordinary event of. such force and suddenness as to cause the injury to plaintiff, then proof of that fact would necessarily call into play the rule of res ipsa loquitur, which is that where the thing causing the injury is under the exclusive control of one who owes a duty to another, and it is shown that the injury would not have occurred in the ordinary course of things if the agency inflicting it had been managed or operated with due care, then evidence of the happening of the injury, without the fault of the person injured, affords prima-facie evidence of negligence and will take the case to the jury and permit it to infer negligence, and then find from all the evidence whether this inference has been rebutted or overcome and the plaintiff has sustained the burden of proof imposed on him by law. This rule has been applied to injuries caused by railroads, elevators, electric wires and divers other appliances involving the use of powerful forces or machinery. [4 Wigmore on Evidence, sec. 2509, and cases cited in note; 5 R. C. L., sec. 713, p. 74; 29 Cyc. 591, and cases cited; Sweeney v. Erving, 228 U. S. 233 ; Brown v. Railroad, 256 Mo. 522 ; Dougherty v. Railway, 81 Mo. 325 ; Gallagher v. Illuminating Co., 72 Mo. App. 579 ; O’Callaghan v. Dellwood Park Co., 242 Ill. 336 , 149 Ill. App. 34 ; Redmon v. Railway, 185 Mo. l. c. 10; Price v. Met. St. Ry. Co., 220 Mo. l. c. 457; Whittaker’s Smith on Neg., p. 552; Turner v. Haar, 114 Mo. l. c. 346-7; Hughes v. Railroad, L. R. A. 1916A, 927, and notes, p. 930 et seq.]
It follows that whether the allegations of the petition he construed as a charge of general or specific negligence, in either event under the undisputed testimony the plaintiff made a case entitling him to go to the jury, for the phase of the evidence above quoted tended to prove, as has been seen, the charge of defective construction and operation (which the majority opinion holds was a specific one) or it tends to show a. state *140 of facts invoking the rule of res ipsa loquitur if, as I think, the charges of negligence in the petition were general.
In these circumstances it was the duty of the defendant to rebnt the prima-facie case made by the evidence given for the plaintiff on one or the other theories of negligence alleged in his petition. Defendant took no steps to rebnt the weight of the evidence against it at the conclusion of plaintiff’s case but interposed a general demurrer thereto which should have been overruled and the case sent to the jury.
Walker and Blair, JJ., concur.