(dissenting).
I am unable to agree with the opinion promulgated by the majority of my associates in this case. I am of the opinion that the rule of res ipsa loquitur has no application in this case and that the instructions by the trial court are sufficient.
In Sand Springs Park v. Schrader, 82 Okl.244, 198 P. 983, 986, 22 A.L.R. 593, we said :
“The phrase ‘res ipsa loquitur’ is ‘merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as to the cause of the accident’ ”
In Cosden v. Wright, 202 Okl. 211, 211 P.2d 523, 527, we quoted from Thompson on Negligence, Volume 8, Section 7635, pp. 1022-1024:
“ ‘The rule of “res ipsa loquitur” is a rule of evidence only. It takes more than the mere happening of an accident to set the rules in operation. It must be shown that the act was of such a character, as, in the light of ordinary experience, it is without explanation, except on the theory of negligence. The thing causing the accident must have been under the control of the defendant or his servant at the time of the accident. The doctrine proceeds on the theory that it is easily within the power of the defendant to show that there was no negligence on his part. * * * Neither does the doctrine apply where the facts shown are equally consistent with the hypothesis that the injury was caused by the negligence of the injured person or by that of defendant, or by both combined.’ ”
*252With the above definition and basic principles in mind let us examine the allegations of the petition and generally the evidence.
In the petition the plaintiff alleged the defendant, McGrath, was a lessee operating a filling station and the defendant, R. Hul-vey, was his employee and that in the status of invitee, plaintiff drove her car into the station to have the lights on her car fixed so they would turn off; that R. Hulvey had her drive the car to a specified location where he placed a four-wheel jack under the car and raised it and then slid under the car on a scooter; that the jack failed to hold and fell and the jack was “projected” from under the car and against her, causing described injuries and that defendants owed her care and a duty to warn her of dangers; that defendants were negligent in that they improperly placed the jack under the car; that all instrumental-ities being used were within the exclusive control of defendants and that plaintiff had no control; that defendants were negligent in that the jack was placed under the car without the brakes being set and without blocking the wheels to keep the car from rolling forward by gravity; that defendants were negligent in placing the jack under the car without looking to see if the jack was securely placed; that defendants were negligent in failing to warn plaintiff of the danger of standing near the car. The petition thereby laid the foundation for res ipsa loquitur and negligence.
The defendants denied the allegations of the petition or that the car was in their control and set up contributory negligence and certain affirmative defenses.
The testimony of plaintiff was that she was 51 years old, divorced and worked as a saleslady until the war, when she went to the west coast and worked for “Douglas”, doing electrical work and on general assembly, doing everything in assembling whole ship, parts and all; that after the war worked as a saleslady and then for “Century Geophysical” in electrical department for 15 months to July 5, 1952, when she began working for “Douglas” in Tulsa, wiring instrument panels and “all over”',, until December 5, 1952, when she was injured; that she had owned three Plym-ouths before buying the Plymouth she was' driving; that she drove in the station to-get her lights fixed when they would not turn off and at request of Hulvey drove-the car away from the pumps, and turned', motor off and put car in neutral and sat in car and did not put on emergency brake- or leave car in gear; that Hulvey did not ride when she drove the car; that Hulvey came up and she loaned him a flashlight; that she has no knowledge of auto repair; that Hulvey looked under the hood and dash and went behind car and brought a. jack and creeper and she got out of car and stood by left side with left door open; that she “was watching the boy”; that Hulvey put the jack under the left side and jacked up car so left wheel was free and scooted under the car and Hulvey requested she turn on the light switch and as she turned to do so and before she could do so the car slid off the jack and the jack popped out and hit her, knocking her down; that defendant, McGrath, came up and after lifting the car off of Hulvey told Hulvey not to raise a car like that again.
The plaintiff used as a witness the defendant, McGrath, who testified the station yard was “blacktop” and had a gradual-slope; that he did not see the occurrence, but the jack was partially under car and on its side when he came up and later helped plaintiff walk to her home across the street; plaintiff used this witness to-demonstrate the wheeled hydraulic jack and that the lifting saddle moved 6½ inches forward when elevated.
The plaintiff used the defendant, Hulvey, as a witness and corroborated plaintiff as to placing the car away from pumps; that he placed jack under frame at side; that he did not set brakes or block wheels; demonstrated jack and use so he could get under car on the creeper; that it was getting dark; that he did not have the keys; that plaintiff was with him when he looked under hood and in back and was be*253side car and that the left wheel was on the ground.
Plaintiff used as a witness McNeill and Homan, hydraulic jack expert and service manager respectively, who testified extensively as to the use and characteristics of the jack and that the proper use in such cases was to place the jack under the differential or rear axle and to use under the side frame is not best practice; that a stand should have been placed under the car.
Plaintiff exhibited an identical hydraulic jack and the dash instrument board of a 1950 Plymouth auto.
This in brief is the pertinent portion of the testimony and evidence of the plaintiff.
Defendant, McGrath, denied making any statement to Hulvey criticizing the method of using the jack and defendant Hulvey testified that when he requested plaintiff to turn on the light switch plaintiff put one foot in car and the starter engaged causing the car to move forward and off the jack. Witness, Smith, auto mechanic, testified extensively that the jack was properly used and as to the characteristics of the jack and related an experiment made by him at the place and under the same circumstances as claimed by plaintiff which negatived contentions of plaintiff and her witnesses.
It is under these circumstances and this evidence that the majority opinion concludes an instruction of res ipsa loquitur should have been given. I do not agree.
At least one of the basic principles of res ipsa loquitur is missing in that the in-strumentalities involved were not within the required control of the defendants.
In this case the instrumentalities involved were the jack, which was the property of McGrath, and the car, which was owned by the plaintiff. The combination of the two instrumentalities resulted in the plaintiff’s injuries. Neither, standing by itself and separate and apart from the other, would of itself cause the injury. Plaintiff and defendant were both present and under the plaintiff’s own testimony she put the car in neutral and did not put on the emergency brake. The effects of plaintiff’s action in this respect upon the stability of the car are too well known to require further explanation and are particularly significant in view of the holdings of this court. The voluntary statement of plaintiff that she turned the car over to Hulvey was a conclusion and was properly stricken.
In Cosden v. Wright, supra, referred to in the majority opinion, the plaintiff’s trucks were hauling gasoline for defendant and in unloading the gasoline at defendant’s plant, the hose used was furnished by defendant. After the hose had been connected and plaintiff’s driver and defendant’s representative temporarily left, an explosion occurred and a fire was burning at the rear of the truck. The cause was not known. Plaintiff alleged no specific act of negligence and relied on res ipsa loquitur and the 'case was submitted to the jury on that theory. The jury returned a verdict for plaintiff. In reversing the judgment we stressed the separate ownership of the truck and hose and that although the method of unloading was subject to direction of defendant, the operation was accomplished by both plaintiff and defendant, and that in such situation:
“ * * * the management and control of the instrumentalities required by the rule means something more than the actual possession and use at the time of the accident and that it must include that previous management and control which is responsible for the fitness of the instrumentalities for the intended use. * * ⅜ ”
In Laffoon Oil Company v. Flanagan, Okl., 330 P.2d 194, 197, the plaintiff was a pumper employed by Laffoon on an oil lease and sued Laffoon and McDaniel Well Service Company for damage to his truck caused by a falling derrick. McDaniel had been employed by Laffoon to service oil wells on the lease. In performing this service McDaniel used the existing steel derrick over the well and after installing,, a crown block started to pull the rods, but before the slack had even been taken up the derrick collapsed and fell on the truck. *254Plaintiff alleged negligence by Laffoon in maintaining the derrick and that the derrick was not properly constructed to withstand the pressure and that McDaniel was negligent in failing to test the derrick, that the guy wires were loose and for other reasons. The jury returned a verdict for plaintiff, Laffoon and McDaniel appealed. In reversing the judgment we stated no one knew the cause of the collapse and as to the applicability of res ipsa loquitur against McDaniel stated:
“But, defendant in error contends that the doctrine of res ipsa loquitur is applicable against this plaintiff in error. This would be true except that McDaniel Well Service Company did not have the necessary management of the instrumentalities involved. One of the essential factors in the application of that rule is that all of the in-strumentalities must have been under the control of the person against whom the rule is asserted. Carter Oil Co. v. Independent Torpedo Co., 107 Okl. 209, 232 P. 419. The management and control contemplated means 'something more than the actual possession and use at the time of the accident and that it must include that previous management and control which is responsible for the fitness of the instrumentalities for the intended use.’ Cosden v. Wright, 202 Okl. 211, 211 P.2d 523, 528. Plere, the derrick was under the management and control of the lease owner.”
It is my belief that the cited decisions absolutely bar from this case any application of the doctrine of res ipsa loquitur but if these are not sufficient then plaintiff has by her allegations of negligence, and particularly by her evidence and contra evidence of defendants, removed from the case any reason for the application of the doctrine.
The majority opinion ignores or passes over all the testimony and evidence of plaintiff’s witnesses and exhibits that were aimed at proving negligence on the part of defendants as to the exact reason why the jack slipped from under the car. The evidence was more extensive and varied than the allegations of the petition but it was admitted and considered by the jury. Even if the doctrine of res ipsa loquitur was originally applicable there was nothing left for it to operate on and therefore was correctly refused by the trial judge.
Evidence of plaintiff and her witnesses, as hereinbefore related and the slope of the yard and covering of “blacktop”, the forward movement of the jack saddle, improper use of jack at side instead of under rear axle, that the lugs on the saddle would cause the saddle to slip on the frame if not properly placed, and failure to use a stand, and every inference to be drawn therefrom, together with the counter evidence of defendants, exhausted every possibility of why the injury occurred.
In Billington Lumber Co. v. Cheatham, 181 Okl. 402, 74 P.2d 120, 122, we said:
“The correct principle, as we gather from our decisions, is that where the evidence raises no issue as to the specific allegations of negligence the plaintiff may resort to his general allegations, if any, and invoke the doctrine of res ipsa loquitur where the facts and circumstances as to the instrumentality and resultant injury as above set out are present. However, if the evidence raises an issue on the specific acts alleged, the reason for the application of the doctrine is thereby removed from the case. Bewley v. Western Creameries, Inc. [177 Okl. 132, 57 P.2d 859], supra. There the court specifically held that the doctrine in question does not apply where there is evidence to establish the cause of the accident, or, in other words, where there is evidence to establish the specific acts alleged. The rule there expressed in no way infringes the pronouncement in the Guilford Case [Guilford v. Foster & Davis, Inc., 131 Okl. 148, 268 P. 299], above.
“The California and United States court cases cited are not in conflict *255with our views here expressed. They are authority for the proposition that the doctrine of res ipsa loquitur cannot apply where there is direct evidence of the cause of the injury or where the same facts which give rise to an inference of negligence on the part of defendant give equal support to an inference that the injury resulted from an event not attributable to defendant.”
The fact that the jury gave a verdict for the defendants is not proof of grounds that plaintiff should now have the benefits of the doctrine of res ipsa loquitur.
The verdict and action of the trial court should have been affirmed.
I am authorized to state that Mr. Justice JOHNSON and Mr. Justice IRWIN concur in the above dissenting views.