(concurring in part and dissenting in part).
I concur with the majority that the judgment entered on the jury verdict dismissing the complaint against the defendants Horton should be affirmed, but I dissent to that portion of the majority opinion which holds that the judgment dismissing the *205complaint against the defendant Otter Tail should be reversed.
Assuming the presence of propane gas in the sump at the time the appellant’s husband died, there was, in my opinion, no evidence introduced which would support a reasonable inference that the propane gas came from Otter Tail. The appellant’s husband died on November 3, 1967. Otter Tail employees had located a leak in Otter Tail’s' service line leading from the main line in the street on September 19, 1967, a month and a half before the death. This service line did not lead to the high school. The school is located on the east side of the street but the leak was on the west side of the street. The service line led toward the Armory, which is located across the street from the school, and served a house next to the Armory. There were no service lines in this street leading to the high school.
On September 19, 1967, the employees of Otter Tail dug down to the leak, went back on the service line to the main line, cut the service line and capped it. The leak was about fifty to sixty feet from the nearest outside wall of the school building. The evidence discloses that the capping of the service line completely shut off the flow of gas from the main line to the area of the leak. Explosimeter probings were made, not only at the site of the leak but in all directions from it, including the area toward the school. At a point ten feet from the site of the leak negative readings were obtained on the explosimeter. The record contains no evidence of any other leaks in Otter Tail’s gas lines anywhere in the area of the Jamestown school, either before or after September 19, 1967. The appellant has produced no evidence of any disturbed soil conditions between the site of the leak and the school, no evidence of general soil conditions between these two points, and no testimony by any expert, by way of opinion, as to the means by which propane from the site of Otter Tail’s lake could or did reach the drain sump within the Jamestown school building.
This action is bottomed on a claim of negligence. It is elementary that the appellant, as plaintiff, has the burden of proof. She must adduce evidence from which reasonable men may be warranted in drawing an inference of negligence or want of due care. Eliminating the question of whether propane gas contained in the sump caused the death of the appellant’s husband, the evidence, insofar as the claim against Otter Tail is concerned, is not in conflict.
The majority have alluded to the fact that there is no evidence that the propane gas tanks contained in the school building area where the sump is located were leaking. I wish to point out that there is no evidence that Otter Tail’s lines for the transmission of gas were leaking either and,, under the evidence, assuming that propane gas accumulated in the sump and caused the death of appellant’s husband, it is just as likely that the leak occurred from the tanks containing propane gas located in the immediate vicinity of the sump as that the gas accumulated from a leak in Otter Tail’s gas line. Otter Tail had no control of the propane gas tanks located within the school building nor had it supplied these tanks. The evidence, at the best, establishes only a possibility that the gas which caused the death came from the Otter Tail lines. The leak in the Otter Tail service line some fifty to sixty feet distant from the outer wall of the school building, established to have been corrected by cutting the service line and capping it at the main line a month and a half before the accident, is so remote in time, particularly in view of the fact that it was established by tests at that time that gas from the leak had permeated the soil a distance of only ten feet. In the absence of any evidence of a further or new leaking, or that the gas stored in the soil surrounding the leak would move laterally toward the school building, there are no facts from which a fair inference can be drawn that Otter Tail’s gas had collected at the bottom of the sump within the school building.
*206Where evidence is such that it merely makes it possible for the facts in issue to be as claimed raises a mere conjecture, surmise, or suspicion that such evidence does not constitute a sufficient foundation for a verdict and the question should not be submitted to the jury. Ternes v. Farmers Union Central Exchange, 144 N.W.2d 386 (N.D.1966); Thompson v. Hannah Farmers Coop. Elevator Co., 79 N.W.2d 31 (N.D.1956). A verdict or finding must be supported by substantial evidence and a scintilla of evidence is not sufficient. Thompson v. Hannah Farmers Coop. Elevator Co., supra.
As I pointed out earlier there is no evidence of any disturbed soil conditions between the site of the leak and the school building. Further, there is no evidence of the permeability of the soil or of the fuga-cious characteristics of propane gas, and no testimony by any expert, by way of opinion or otherwise, as to the means by which the propane gas from the site of Otter Tail’s leak could or did reach the drain sump within the Jamestown school building. A solution to the issue as to how Otter Tail’s propane gas could have reached the sump within the Jamestown school building involves several related technical facts, a proper understanding of which requires knowledge and experience beyond that gained in the ordinary affairs of life. It appears to me that in order to establish that gas passed through the soil under such conditions, for a distance of fifty to sixty feet, and through the foundation wall of the school building and into the sump area of that building, expert testimony must be resorted to in order for the finders of fact to arrive at an intelligent conclusion. No such evidence was offered.
In view of the facts and circumstances of this case and the common knowledge and experience of mankind, which common knowledge utterly fails, it would have required surmise, speculation and conjecture on the part of the jurors to hold against Otter Tail had the trial court submitted the case to them.
When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding on motion by directed verdict in accordance with Rule 50(a), N. D.R.Civ.P., the rule governing procedure in the district courts which became'effective August 1, 1971. By such direction of the trial court the result is saved from the mischance of speculation over legally unfounded claims. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943). Rule 50(a), N.D.R.Civ.P., as amended, effective August 1, 1971, which was prior to the date of the trial in this case, provides:
“(a) Motion for directed verdict— When made — Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to be the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”
Under the state of the record at the close of the plaintiff’s evidence Otter Tail made a motion for a directed verdict, stating specific grounds therefor, which motion was granted by the trial court dismissing Otter Tail from the case. Judgment 'was entered accordingly. This judgment, in my opinion, should be affirmed on this appeal.