DISSENTING OPINION OF
RICE, C. J.I would reverse.
It is my opinion that this is not a case where the doctrine of res ipsa loquitur is applicable and I cannot agree that, "no harm resulted from the instructions {inclusive of that of the applicability of res ipsa loquitur\ as the jury necessarily found there was no negligence upon the part of the doctors in the breaking off and leaving of the catheter within the body of the plaintiff as {sic} the jury decided in favor of the operating physician {surgeon}, Dr. Yee and he alone had inserted and removed the catheter.”
Applying the doctrine of res ipsa loquitur, the trial court, over defendants’ objection, gave plaintiff’s instruction number 9, as follows:
"If and only in the event you should find that the plaintiff suffered injury proximately resulting from a portion of a rubber tube being left in her abdomen after an operation and if you should find that the said rubber tube was under the control and management of the defendants, the fact of the injury itself will be deemed to afford sufficient evidence to support a recovery in *296the absence of any explanation by the defendants tending to show that the injury was not due to their want of care. Under such circumstances the plaintiff has made out a prima facie case which entitles her to a favorable finding unless the defendants introduce evidence to meet and offset its effects. Should the defendants have introduced such evidence it is for you, ladies and gentlemen of the fury, bearing in mind that it is incumbent upon the defendants to show care, to determine after weighing such evidence whether or not the defendants have rebutted such a prima facie case.” (Emphasis added.)
The foregoing was supplemented by giving, over defendants’ objection, plaintiff’s instruction number 12, as follows:
"When the doctrine of res ipsa loquitur is applicable, the fury may presume negligence in the absence of a reasonable and satisfactory explanation as to how the accident occurred.” (Emphasis added.)
Those two above-quoted instructions erroneously placed the burden of proof of nonnegligence upon the defendants, instead of the burden of proof of negligence upon the plaintiff as it should have been.1
*297Among several other instructions given by the trial court which were objected to by the defendants and which the defendant-appellant Dr. Ing has set forth in his specifications of error, were plaintiff’s instructions numbers 20, 21, 24, 26, 28, 29, 30, 33, 35-A, 58, 59, and 60.
Without passing on the alleged errors in the giving of others of those instructions, I will say that I deem that the trial court erred in giving number 35-A, as follows:
"General custom of practising physicians and surgeons is not, as a matter of law, in itself, due care.”
The rule of law, as I gather it from the cases, is that, in an action by a patient against the physician to recover damages for injury alleged to have been sustained as a result of malpractice the burden is on the plaintiff to prove failure of the physician to exercise the reasonable and ordinary care, skill and diligence possessed by others in the same line of practice and work in a similar locality, was the proximate cause of injury. It is not "general custom,” but ordinary care, skill and diligence possessed by others in the same line of practice and work in a similar locality which is the standard to be observed.2
I also deem that the trial court erred in giving plaintiff’s instruction number 60, as follows:
"Negligence and unskillfulness may be proven by the introduction and application of presumption permitted by law and as I have set forth in these instructions.”
Particularly, the giving of such an instruction was an error, because of the preceding instructions based on the erroneous application of the doctrine of res ipsa loquitur to the case.
1 have made an exhaustive examination of the five volumes of transcripts of evidence and have made a written analysis thereof, which is too long to quote herein, but from which I have come to the conclusion that there was not prima facie proof by the evidence submitted to the jury to warrant a finding of causal relationship *298between the suffering alleged to have been sustained by the plaintiff-appellee to the doing or failure to do anything by Dr. Ing, defendant-appellant herein.
Mrs. Ho, the plaintiff-appellee, herself testified that she went to the office of Dr. Ing twice after her operation and that there had never been a failure on the part of Dr. Ing to "show up,” at any time she called him. She also testified that subsequent to leaving the hospital after her operation she had been treated by Dr. Pang, Dr. Sia, Dr. Lester Yee, Dr. Warren Wong, Dr. Ishii, Dr. Herbert Chinn and Dr. Minn Hing Lee. When asked to tell in what year those doctors were her physicians, she replied:
"A ■ I can’t tell you because if the doctor didn’t treat me right I call another doctor.”
Doctors testified to her having been treated by them for several ailments, inclusive of, kidney infection, hypertension, swelling of her ankles, heart condition sometimes referred to as arteriosclerosis, hardening of the arteries, which would among other things be attributable to her advanced years. None of such ailments were definitely attributed to her post-operative unhealed wound, and expert testimony was to the effect that there was no causal connection between the catheter having been left in her body and her kidney disease, or her heart disease, or her hypertension, or her arthritis.
It appears to me that the instructions quoted, supra, particularly with respect to the application of the doctrine of res ipsa loquitur would affect the verdict with respect to Dr. Ing, the appellant herein, so this case differs from the case of W. W. Ahana v. The Insurance Company of North America, 15 Haw. 636 (1904) which has been cited in the majority opinion in the instant case.3
As to res ipsa loquitur:
Lyu v. Shinn, 40 Haw. 198, 203 (1953)
Smith v. McClung, 201 N. C. 648, 161 S. E. 91, 93 (1931)
Robinson v. Ferguson, 107 Ind. App. 107, 22 N. E. (2d) 901 (1939)
Hohenthal v. Smith, 114 F. (2d) 494 (D. C. Cir 1940)
Cooper v. McMurry (Oklahoma, 1944), 149 P. (2d) 330, 331 (1) and 332 (2, 3)
Trindle v. Wheeler (Cal. 1943), 133 P. (2d) 425
Ingram v. Harris (Alabama, 1943), 13 So. (2d) 48
Williams v. Tarter (Kentucky, 1941), 151 S. W. (2d) 783
As to burden of proof generally:
5 W. & P. Perm., pp. 931-932 and 1959 Ann Pocket Part, pp. 173-175
See cases cited supra.
53 Am. Jur., Sec. 676, p. 521, note 9