(dissenting): I dissent. As to res ipsa loquitur, I prefer the statement in Sweeney v. Erving, 228 U. S. 233, quoted in Jesionowski v. Boston & Maine R. Co., 329 U. S. 452, 67 S. Ct. 401, 91 L. Ed. 311. There the supreme court of the United States said:
“. . . res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.” (p. 457.)
In my opinion, the question is not whether the statements in the petition fit squarely into some rule but whether the facts stated therein would warrant the jury in returning a verdict in favor of the plaintiff if they had been proved. I do not think there is any doubt but that we would have sustained such a verdict.