dissenting. I respectfully dissent. The case was submitted to the jury on the basis of negligence and the majority opinion indicates that they believe that negligence is the appropriate basis for liability rather than liability without negligence. With this I can agree, as it is not shown that the use being made of appellants’ property or the method of operation was such as to invoke the doctrine of strict liability. I agree that the doctrine of res ipsa loquitar cannot be applied in a case such as this when injury might have been brought about by either of two speculative theories, for one of which the defendant is not responsible, and neither of which is included or excluded by affirmative evidence. Oklahoma Gas & Electric Co. v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550; Martin v. Arkansas Power & Light Co., 204 Ark. 41, 161 S. W. 2d 383; Williams v. Lauderdale, 209 Ark. 418, 191 S. W. 2d 455. The evidence must have a substantial probative tendency to show that plaintiff’s injury was caused by defendant’s negligence to the exclusion of anything else. Saunders v. Lambert, 208 Ark. 990, 188 S. W. 2d 633.
As indicated, in the majority opinion, the evidence on behalf of appellees was all circumstantial both as to negligence and proximate cause. This is a proper basis for a jury verdict. Parker v. Marsh, 221 Ark. 229, 252 S. W. 2d 624; Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290. Conjecture cannot be permitted to supply the place of proof, however, and create a conclusive presumption, as this would exclude every other reasonable means which might have caused the injury. Missouri Pacific R. Co. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246. The burden was on appellee to show an act of negligence on the part of appellant by substantial testimony and he cannot rely on inferences based on conjecture and speculation. Glidewell, Administrator v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4.
It seems to me that, as between the salt water pits and the “sand fracting” operation, the jury could only speculate as to the cause of damage to appellees. The circumstantial evidence certainly does, not exclude the salt water pits as a possible cause, nor do I think it shows negligence on the part of appellants. In Turner v. Hot Springs Street Railway Co., 189 Ark. 894, 75 S. W. 2d 675, a case involving a similar question, this court said:
“*”And where the testimony leaves the matter uncertain, and shows that any one of a half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.”
The acts of negligence upon which appellees rely were (1) use of excessive pressure, (2) failure to place enough protective material above the pressure area, and (3) causing excessive vibrations of the oil well casing.
Evidence of excessive pressure is based almost entirely upon the testimony of appellee Edith Primm that there was more pressure than had been used in sand fracting other wells near their house. It appeared from cross-examination that she judged pressure by the noise made in the operation. There was no evidence that the apnount of pressure used was excessive, nor was there any evidence at all on behalf of appellees as to the second act of negligence. Mrs. Primm also testified that they felt vibrations at the house and it seemed as if they were going to have the ground blown right out from under them. There was expert testimony to show that the vibrations were only in the air.
Jack Robinson, a witness for appellees who has worked in the oil industry, stated that vibrations would loosen casing in an oil well. He also said that when you liave a loose casing, it was possible that fluids would pass up through the channeling and that channeling jobs have been known around pipe in an oil well. John Langley, another witness for appellees, said that vibrations would loosen casing and that channeling, or the movement of material from one formation to another, resulted from pressure. He also said that when the cement was not adequate to protect against such a possibility, the situation could be detected by salt water in the oil formation. Conrad Hamlin, offered as a water well expert by appellees, said that there was a chance that a slush pit 100 feet by 100 feet, 15 feet deep, within 500 feet of Primm’s shallow well which has salt water continually discharged into it would pollute the Primm well. There is nothing in the record to show that appellants had anything to do with these pits.
Tom Jordan, a petroleum engineer employed by B. J. O’Brien, stated that the oil well was in all respects in accord with industry standards before the sand fracting was done. He said the oil producing formation was at 2,150 to 2,200 feet.
Lee Zwahlen, O’Brien’s petroleum engineer who designed the sand fracting job on the well, said that they tested the lines and pump used under pressure and found no cracks or leaks. He also said that the work was done 2,150 feet down in the well. The pressure used was 2,500 pounds per square inch. He added that if the fracting material had not gone into the oil producing formation it would have come out the top valve. While he said the pump made a lot of noise, he said there was no vibration of the ground. Acid was spotted around the perforations1 to clean them up. He said that salt water increased from 7% or 8% to 10% after the fracting. Mr. Zwahlen had heard of channeling jobs and knew what they were, but testified that there was no channeling on this job. He said this would have been impossible without producing a lot of salt water and that this did not occur.
M. J. Olive, a chemical engineer, supervised the taking and analyzing of samples from the Primm well and the pits near the house. The chemical analysis in each sample was very nearly identical, hut the chloride content was naturally much higher in the pits. It was his opinion, based on an on-site inspection and analysis of the water samples, that the concentration of chloride in the Primm water came from the pits by seeping subsurface to the well.
In my opinion this testimony does not meet the requirement for circumstantial evidence to show that the well was affected by the sand fracting job or that appellant was guilty of any negligence. There was no evidence that there was channeling, no evidence of excessive salt water as a result thereof, and nothing to indicate that any of the material used came from a depth of 2,150 feet through various formations to the level of appellees ’ well which was 29 feet deep. The chloride content was shown by a letter from a chemist named Faulkner to Primm to be low enough on September 10, 1964, to indicate that no acid got into the well during the fracting job.
I think that the evidence, given the strongest probative force favoring appellees, only leads to speculation and conjecture as to both negligence and proximate cause which are improper bases for submission of the question to the jury. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290. The burden was on appellees to show by substantial evidence, rather than inferences, speculation and conjecture, a basis upon which a jury might have found some act of negligence on the part of appellants. GUdewell, Administrator v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4. Nor may a jury capriciously disregard reasonable testimony of witnesses in order to give substance to a fanciful theory. Missouri Pac. R. Co. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246. In tlie latter case tlie evidence showed that the battered body of appellee’s decedent was found on a straight railroad track on which it was customary for pedestrians to walk. There was blood at the scene. There were no footprints and no indication that the body had been dragged. It was shown that deceased had started walking to a destination along the railroad tracks five miles away on the night before his body was found. The railroad company’s testimony showed that a lookout was maintained on all trains at all times the deceased could have been on the tracks and that the headlights on the trains gave proper illumination. The language of the court is particularly applicable here:
“* * * If, with the lookout being maintained, physical surroundings and attending conditions were such as to negative any explanation of the tragedy other than the supposition that Ross was walking on or near the track, then we might say the jury was justified in disregarding testimony of appellant’s agents as to the measure of care, and such action would not be arbitrary. But no such case has been made out. To admit this would be to say that there is a conclusive presumption that Ross was walking on or near the track, in the glare of a brilliant headlight, and that negligence alone was responsible for the fact that his presence in such place of peril was not discovered. There is no such conclusive presumption. Such a rule would exclude every other reasonable means which might have caused the tragedy[Emphasis ours]
There are other means which might well have caused this damage in the case before us and the testimony does not exclude them.
I do not find the suggestion that ground vibrations may have caused seepage from the salt water disposal pits convincing. There was no evidence either that this happened or might have happened. Such a conclusion by the jury could only be speculation.
I am authorized to state that Brown, J., joins in this dissent.
The perforations are at the level of the oil producing strata.