I concur in the judgment insofar as it reverses the nonsuit in favor of defendant Tumin. The evidence is sufficient to warrant an inference that while plaintiff was walking across defendant Tumin’s showroom on his way to the front door, a ladder fell away from the wall top end first, struck him on the head, and knocked him to the floor. Since a ladder would not ordinarily fall had it not been negligently placed' or *662left in an unstable position, and since plaintiff himself did nothing to set it in motion, the doctrine of res ipsa loquitur may properly be invoked to justify an inference of actionable negligence against the person who had control of the ladder and the premises where it was located. Defendant Tumin had such control. He was the lessee of the premises and was the only person apart from his employee, for whose conduct he was also legally responsible, who might either have placed the ladder in a dangerous position or failed to remove it from such a position after taking possession of the premises.
I cannot agree, however, that the doctrine of res ipsa loquitur should be invoked against defendant Bndriss merely because he was one of the persons who could have placed or left the ladder in a dangerous position. The doctrine is based on probabilities. Defendant’s control and the nature of the injury must be such that reasonable men can conclude that it is more probable than not that the cause of the injury was negligent conduct on the part of defendant. (LaPorte v. Houston, 33 Cal.2d 167, 169 [199 P.2d 665]; Honea v. City Dairy, Inc., 22 Cal.2d 614, 616-617 [140 P.2d 369]; see Prosser, Torts, p. 297.) If there is equal probability that the injury could have been caused by the negligence of any one of two or more persons, it is impossible to conclude that it was more probably caused by one than another, and the doctrine is inapplicable. (Hernandez v. Southern California Gas Co., 213 Cal. 384, 388 [2 P.2d 360]; Olson v. Whitthorne &„Swan, 203 Cal. 206, 208 [263 P. 518, 58 A.L.R. 129]; Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130,133-134 [206 P.2d 653]; see Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 196-198, and cases there cited.)
Although the record is devoid of evidence from which it can be determined which of the defendants was at fault, the majority opinion holds that the “fact that plaintiff is by the very circumstances under which he was injured unable to specifically identify, as between master and servant, the actively negligent person does not deprive him of the aid of the doctrine of res ipsa loquitur.” Under the rule so enunciated it is no longer necessary for a plaintiff to prove that it is more probable than not that he was injured as a result of defendant’s negligence; he need only prove that he suffered an injury of a kind that does not ordinarily occur in the absence of someone’s negligence and that defendant was one of various persons who could have been negligent. Although such a rule is supported by Ybarra v. Spangard, 25 Cal.2d *663486 [154 P.2d 687, 162 A.L.R. 1258], and Cavero v. Franklin etc. Benevolent Soc., ante, p. 301 [223 P.2d 471], it is at war with the general principle that plaintiff must prove that defendant was negligent and that his negligence was the cause of the injury. Under the rule of the Ybarra case as here applied a plaintiff who has suffered an injury of a kind that ordinarily does not occur in the absence of someone’s negligence may establish a cause of action against all persons who had an opportunity to cause the injury. A plaintiff, for instance, who is struck on the head by a flowerpot falling from a multistoried apartment building may recover judgment against all the tenants unless the innocent tenants are able to identify the guilty one. (See Ybarra v. Spangard, 93 Cal.App.2d 43, 47-48 [208 P.2d 445].)
Until the present decision, the rule of the Ybarra case has been confined to the factual situation there presented. In that case an unconscious patient suffered an unusual injury during the course of an operation, and the court held that he could invoke the doctrine of res ipsa loquitur against all persons who took part in his treatment while he was unconscious. It was careful to point out, however, that it was not undertaking “to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked.” (Ybarra v. Spangard, 25 Cal.2d 486, 494 [154 P.2d 687, 162 A.L.R. 1258].) In the exploding bottle cases, that reasoning has not been applied, and it has uniformly been held that before he may have the benefit of res ipsa loquitur, the plaintiff must prove that the bottle was carefully handled after it left the control of the bottler. (Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517-518 [203 P.2d 522]; Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 133-134 [206 P.2d 653]; McClelland v. Acme Brewing Co., 92 Cal.App.2d 698, 699-700 [207 P.2d 591].) Under the reasoning of the majority opinion, plaintiff could invoke the doctrine of res ipsa loquitur against the bottler and any intermediaries without proving anything more than that he himself handled the bottle carefully.
The doctrine of res ipsa loquitur concerns a type of circumstantial evidence upon which plaintiff may rely to discharge his burden of proving that his injury was more probably than not the result of negligent conduct on the part of defendant. When, as in the Ybarra case, however, the court permits recovery against defendants who plaintiff has not proved more probably than not caused his injury, ostensibly *664by extending the doctrine of res ipsa loquitur, it is actually setting up a new rule of law affecting the burden of proof.
There are situations where, either by the application of a presumption or by shifting the burden of proof itself, it is reasonable to require of defendant an explanation if he is to escape a judgment against him. Thus, when bailed goods are lost or destroyed, it is reasonable to require the bailee to prove that the loss was not owing to his negligence. (George v. Bekins Van & Storage Co., 33 Cal.2d 834, 839-841 [205 P.2d 1037].) Again, when a carrier has undertaken to carry a passenger safely it is reasonable to enforce that duty by requiring the carrier to explain an accident. (See Prosser, Bes Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 185.) The relationship between an unconscious patient and those who have undertaken to treat him may also be one that justifies placing the burden of proof on the attendants if they are to escape liability for an unusual injury inflicted while the patient is unconscious. Only confusion can result, however, if rules designed to shift the burden of proof or the burden of going forward with the evidence are treated as rules governing the sufficiency of circumstantial evidence.
. In Summers v. Tice, 33 Cal.2d 80 [199 P.2d 1, 5 A.L.R.2d 91], the court avoided this confusion by a forthright recognition that when one of two negligent defendants .injures the plaintiff and it is impossible for the plaintiff to prove which one, it is reasonable to put the burden on each defendant of proving that it was not his negligence that caused the plaintiff’s injury. In the present case, however, there is no evidence that both defendants were negligent. It is hardly reasonable to place on defendant Bndriss the burden of proving that his negligence did not cause plaintiff’s injury when his negligence has not'been established. Moreover, there is nothing in the relationship between plaintiff and defendant Bndriss that justifies shifting the burden of proof from one to the other. Both were on the premises for the purpose of assisting defendant Tumin to prepare for the opening of business. Neither had a duty to make the premises safe and neither had had anything, to do with the ladder. They were substantially in the. same position. If defendant Bndriss must explain the injury that .befell plaintiff, plaintiff would be under the same burden, had the ladder fallen on Bndriss. In other words, any plaintiff who suffers an injury of a kind that would not ordinarily occur in. the absence of someone’s negligence may recover judgment from, .any person who had an opportunity *665to cause the injury, even if he bears no special relationship to plaintiff that justifies placing the burden of proof on him.
The injustice of making an innocent person, who has not undertaken any special duty toward plaintiff, bear the burden of the latter’s loss may be obscured in this case because there are only two defendants, one of whom was more probably negligent than not. The rule now stated in reliance upon the Ybarra ease is not limited to such situations. In the Ybarra case there were six defendants and judgment was secured against all of them because none could account for the injury. (Ybarra v. Spangard, 93 Cal.App.2d 43 [208 P.2d 445].) A resourceful plaintiff could ordinarily find more than two defendants. There might be more than one employee; a plumber, a carpenter, a glazier, a painter, or an electrician might have been upon the premises and had an opportunity to place a ladder negligently; or a former tenant might have negligently left the premises in an unsafe condition. The plaintiff could sue all such persons, and once he had established that he suffered an injury that would not ordinarily occur in the absence of someone’s negligence, the fact that he was “by the very circumstances under which he was injured unable to specifically identify ... the actively negligent person [would] not deprive him of the aid of the doctrine of res ipsa loquitur. ’ ’
Edmonds, J., concurred.