I dissent.
I cannot agree that the evidence is insufficient to sustain the verdict. In Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258], this court held that it was error to enter a judgment of nonsuit against a plaintiff who, because he was unconscious during an operation, is unable to specify which of several doctors and nurses in attendance during the operation were negligent. It was held that such a plaintiff can rely on the doctrine of res ipsa loquitur to avoid a judgment of nonsuit, and that at the trial those in attendance during the operation have the burden of giving an “initial explanation” of the accident and their conduct. “We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.” (25 Cal.2d 494.) In the present case, the court proceeded to a trial on the issue of defendants’ negligence. The evidence showed without conflict that the accident was caused by an explosion during the operation, and that the explosion might have resulted from causes other than negligent conduct of any person in attendance during the operation. There was also evidence explaining the *297conduct of defendants, which convinced the jury that they exercised due care in performing their duties. Since defendants sustained the burden imposed upon them under the doctrine of res ipsa loquitur as applied in the Ybarra case, the jury was free to return a verdict for defendants.
The applicability of the doctrine of res ipsa loquitur cannot be determined in the abstract; it depends upon the evidence in each ease. “The doctrine . . . requires evidence which shows at least the probability that a particular accident could not have occurred without legal wrong by the defendant.” (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 459 [150 P.2d 436].) Such a probability may be dispelled when the facts become known. (Maryland Casualty Co. v. Matson Navigation Co., 177 Cal. 610, 613 [171 P. 427]; Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53]; Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724]; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461 [150 P.2d 436]; Ybarra v. Spangard, 25 Cal.2d 486, 492, 494 [154 P.2d 687, 162 A.L.R. 1258]; Manuel v. Pacific Gas & Electric Co., 134 Cal.App. 512, 517 [25 P.2d 509]; see Klein v. Fraser, 169 App.Div. 812 [155 N.Y.S. 848]; 1 Shearman and Redfield, Negligence, § 56, p. 154.) “When the defendant . . . offers evidence to show that the event was not due to his negligence, there is the . . . question of the extent to which the principle of res ipsa loquitur will survive in the face of such proof. It is generally agreed, except in two or three jurisdictions, that the burden of proof is not upon the defendant, and that he is required to do no more than to introduce evidence which, if believed, will permit the jury to say that it is as probable that he was not negligent as that he was.” (Prosser, Torts, 308.) Two of the four possible causes of the explosion discussed in the majority opinion do not involve negligent conduct of any persons who were in attendance during the operation. If the nitrous oxide was contaminated when the manufacturer delivered it to the hospital, the explosion might have been caused by that anesthetic without fault on the part of any of the defendants. If the nitrous oxide became contaminated at the hospital before it was used on plaintiff, the hospital may be responsible for the negligence of an employee who kept the anesthetic, but none of the persons who were in the operating room during the operation would be at fault. In the Escola case, supra, where the explosion of a bottle filled by the defendant could have been caused by excessive pressure of the *298carbonated beverage in the bottle or by a defect in the bottle, this court said: ‘ ‘ The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies. . . . Although it is not clear in this case whether the explosion was caused by an excessive charge or defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used.” (24 Cal.2d 459, 461.) The holding in that case rests on the conclusion that due care required the defendant to examine the bottles delivered by the manufacturer. By applying proper methods of examination, the defendant could have discovered defects in the bottle. A doctor, hospital, or anesthetist may accept an anesthetic prepared by a manufacturer as being what it purports to be in the absence of circumstances indicating that the anesthetic might be impure. To require them to test anesthetics before use in the absence of such circumstances would involve the danger of contamination incident to the opening of the containers and the testing of their contents. Hence, when it was proved that plaintiff’s accident resulted from an explosion during the operation and that the explosion might have causes other than the negligent conduct of any person who was in attendance during the operation, it could no longer be said that the accident probably could not have occurred without legal wrong by one of the persons attending the operation.
Under the evidence, the jury could determine not merely that negligent conduct of the doctor and the anesthetist was not proved, but that it was proved that they were not negligent. Both testified that no ether was used during the operation. Their testimony eliminated the use of ether as a possible cause of the explosion. There was evidence that the nurse who acted as an anesthetist had 24 years’ experience in administering anesthetics, that she was a graduate of a nursing college and had received postgraduate training in anesthesia, and that in the cleaning of the apparatus she was supervised by the nurse in charge of the operating rooms in the hospital. The latter testified that she saw the anesthetist clean the tube in the approved manner before it was used in the operation. The credibility of the witness was for the determination of the jury. It was also for the jury to determine whether an inference should be drawn from the fact that when her deposition was taken, the anesthetist did not testify as to whether or not she cleaned the tube. At that time, *299plaintiff proceeded on the theory that the ignition of ether by the electric needle caused the explosion; her counsel therefore did not ask the anesthetist if she cleaned the tube. Again, it was for the jury to determine whether an inference should be drawn from the fact that defendants did not produce the container used at the operation to prove that the nitrous oxide in the container was contaminated. Even if the nitrous oxide that remained in the container after the operation was not contaminated, it would not necessarily follow that the nitrous oxide released from the container during the operation was not contaminated. If only part of the nitrous oxide was contaminated, that part could have been released from the container during the operation, while the pure oxide remained in the container. Even if the nitrous oxide in such a container is contaminated at the time of trial, it does not follow that it was contaminated at the time of the operation. The theory that contamination of the nitrous oxide in the container might be responsible for the explosion was not so obvious when the accident occurred as it may seem now, after an expert witness has explained that possibility. If liability of defendants followed as a matter of law from their failure to preserve such a container or to account for its absence, they would be penalized for failing to anticipate a lawsuit and to prepare their defense thereto.
In any event, it was for the jury to draw inferences from the failure to produce the container or to account for it and to weigh them with the other evidence in the ease. It is not for this court to reject the conclusions of the jury, since there is ample evidence to support them.- By doing so, it not only substitutes its own judgment for that of the jury, but makes the possibility of such a substitution one to be reckoned with in future cases, and thereby enlarges that uncertainty in the law which in the long, run causes more hardship than it alleviates.
Under the doctrine of res ipsa loquitur, the majority opinion in effect imposes upon a defendant even more than the burden of proving that he was not negligent. It imposes the burden of proving the actual cause of the accident, for that is the only practical way under the opinion that defendants can show that they were free from fault. The imposition of such a burden necessarily involves the adoption of a rule on grounds of policy that persons in attendance during an operation must explain not only their own conduct, but the conduct of any *300other person, such as a manufacturer of anesthetics, who might conceivably be responsible for the accident, as well as the forces of nature that brought it about. Such a rule would impose upon doctors, nurses, and members of hospital staffs absolute liability for unusual accidents that they cannot explain and might discourage their attending operations. A person about to undergo an operation is generally aware that there may be unforeseeable dangers incident thereto. He is entitled to an explanation of the conduct of the persons attending the operation, but he cannot reasonably expect them to be insurers of his safety.
Edmonds, J., and Spence, J., concurred.
Respondents’ petition for a rehearing was denied January 26, 1948. Edmonds, J., Traynor, J., and Spence, J., voted for a rehearing.