dissenting: It is impossible for me to concur in the majority opinion, and in view of the importance of the decision I feel obligated to fully set forth the reasons.
It is unnecessary to restate the basic rules concerning the doctrine of res ipsa loquitur which are correctly set forth in the court’s opinion and amply supported by authorities therein cited.
The difficulty courts often encounter is the application of the doctrine to the situation disclosed by the facts and circumstances alleged in the petition. This was recognized in Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 161, 300 P. 2d 387.
Loose language used in cases heretofore decided by this court has brought about a critical analysis of the Kansas cases in 3 J. B. K. 158, 159 and 160. In an effort to analyze the basic requirements for the application of the doctrine, which has repeatedly been held to be a rule of evidence rather than one of substantive law, resort is made to the work of John Henry Wigmore, one of the foremost authorities on evidence in this country. In Wigmore on the subject of evidence the doctrine of res ipsa loquitur has been classified under presumptions in the law of negligence. In IX Wigmore, Evidence, Third Edition, § 2509, under the heading “Negligence and Accident: (3) Defective Machines, Vehicles, and Apparatus” the following appears:
“(A) With the vast increase, in modern times, of the use of powerful machinery, harmless in normal operation, but capable of doing serious human injury if not constructed or managed in a specific mode, the question came to be increasingly common whether the fact of the occurrence of an injury (unfortunately now termed ‘accident’, by inveterate misuse) is to be regarded *694as raising a presumption of culpability on the part of the owner or the manager of the apparatus. ‘Res ipsa loquitur’ is the phrase appealed, to as symbolizing the argument for such a presumption.
. . But whether the rule creates a full presumption, or merely satisfies the plaintiff’s duty of producing evidence sufficient to go to the jury, is not always made clear in the rulings:
“What the final accepted shape of the rule will be can hardly be predicted. But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may bé added that the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.” (pp. 377 through 384.)
The importance of the foregoing statement is not that it represents the present state of Kansas law on the doctrine of res ipsa loquitur, but that it indicates the basic principles which underlie the doctrine throughout this country. Important is the fact that an instrumentality exist which meets all of the necessary conditions giving rise to the presumption.
This court has repeatedly recognized an essential element to the application of the doctrine of res ipsa loquitur is that it must appear the instrumentality which produced or caused the injury complained of was, at the time of the injury, under the sole and exclusive control and management of the defendant. If it appear that two or more instrumentalities, one only of which was under the defendants’ control, contributed to the injury, the doctrine should not be apr plied. (Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, and cases cited therein; Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016; Woosley v. Erickson, 179 Kan. 794, 298 P. 2d 268; and Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901.)
Each of the foregoing cases has generously treated the doctrine of res ipsa loquitur and its limitations. In my opinion these cases control the facts presented by the plaintiff’s amended petition, and without unduly burdening this opinion by repeating what has there been said specific reference is made thereto.
Where a plaintiff seeks to take advantage of the doctrine of res ipsa loquitur, it is incumbent upon him to show fully a situation where it is applicable, otherwise there may be an attempt to shift *695the burden of proof in negligence cases by merely asserting the doctrine itself. (Johnson v. Latimer, 180 Kan. 720, 308 P. 2d 65.)
With reference to the doctrine generally, it has been said that it is not a rigid or arbitrary doctrine to be mechanically applied, but a rule to be cautiously applied, dependent upon the circumstances of the case. (Waddell v. Woods, supra; Lamb v. Hartford Accident & Indemnity Co., supra; Pierce v. Schroeder, 171 Kan. 259, 232 P. 2d 460; 38 Am. Jur., Negligence, § 303; and 65 C. J. S., Negligence, § 220 [6].)
Although the doctrine of res ipsa loquitur is a rule of evidence and not of substantive law, it has been held that the elements pertaining to the application of the doctrine are properly applied in determining the sufficiency of a petition which seeks to invoke the doctrine. (Starks Food Markets, Inc., v. El Dorado Refining Co., supra; and Waddell v. Woods, supra.) Reference is made to the amended petition which is set forth as an “Appendix” to the court’s opinion.
It must be conceded that this court has held the doctrine of res ipsa loquitur applicable under proper circumstances to cases involving plural defendants. (Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317.) In that opinion previous decisions of this court were cited where plural defendants were involved. (Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404; Ratliffe v. Wesley Hospital, 135 Kan. 306, 10 P. 2d 859; Starks Food Markets, Inc., v. El Dorado Refining Co., supra; and Waterbury v. Riss & Company, 169 Kan. 271, 219 P. 2d 673.) In each of these cases there was held to be a unanimity of interest in the instrumentality among the several defendants, successive and exclusive control, or a legal relationship among the several defendants which placed them in constructive control of the instrumentality. Plaintiff’s amended petition herein contains no allegations whatever which would lay a predicate for the application of the doctrine of res ipsa loquitur to plural defendants involved herein. Insofar as the amended petition discloses there is no relationship whatever between the defendant Union Gas and the other defendants. It would be a bold assumption, indeed, to hold that there was privity of contract between the defendants other than Union Gas on the allegations of the amended petition herein.
The rule is stated in 38 Am. Jur., Negligence, § 303, as follows:
“The res ipsa loquitur rule does not apply where it appears that the accident was due to a cause beyond the control of the defendant, such as the presence *696of vis major or the tortious act of a stranger. Nor does it apply where an unexplained accident may be attributable to one of several causes, for some of which the defendant is not responsible. It should not be allowed to apply where, on proof of the occurrence, without more, the matter still rests on conjecture alone or the accident is just as reasonably attributable to other causes as to negligence. . . .” (p. 1000.)
In 65 C. J. S., Negligence, § 220(8), it is stated:
“Where either one of two defendants wholly independent of each other may be responsible for the injury complained of, the rule of res ipsa loquitur, in accordance with the preceding principles, cannot be applied. However, the doctrine may be availed of as against plural defendants who were, under the circumstances involved, joint tort-feasors. . . .” (p. 1014.)
A general statement as to the doctrine of res ipsa loquitur consistently applied by this court (see, Stark Food Markets, Inc., v. El Dorado Refining Co., supra; and Waddle v. Brodbeck, 176 Kan. 583, 587, 272 P. 2d 1066) is set forth in Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599:
“. . . Literally translated the phrase means ‘the thing itself speaks,’ of ‘the tiling speaks for itself.’ It is a term used in a limited class of negligence cases, referring to the method of proof of general negligence (as distinct from proof of specific negligent acts or omissions), by proving the injury, together with the accompanying circumstances, from which it may be inferred, and is reasonable to infer, that the casualty happened only because of some negligence of defendant. In actions for damages because of defendant’s negligence, the general rule is, of course, that the negligence of defendant is never presumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are not exceptions to the general rule. ‘It does not dispense with proof of negligence in personal-injury cases.’ (Root v. Packing Co., 88 Kan. 413, 424, 129 Pac. 147.) Rather, in cases in which the phrase is applicable, proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of defendant . . .” (pp. 650, 651.)
In Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77, this court gave the definition of the phrase res ipsa loquitur in like tenor and went on to say:
“. . . Where the accident or occurrence out of which the injury arises is such that direct evidence of negligence is not available, and the circumstances are such that the accident would not have occurred except the defendant be at fault, the circumstances are permitted to be shown as making a prima facie case. But such a showing is not sufficient where the evidence offered suggests with equal force that the injuries might have resulted without fault of the defendant. . . .’’ (p. 76.) (Emphasis added.)
*697In Travelers Ins. Co. v. Hulme, 168 Kan. 483, 213 P. 2d 645, the proximate cause of an injury alleged under the doctrine of res ipsa loquitur is explained and clarified. This court there stated the rule as follows:
“. . . The doctrine has no application to proximate cause — or perhaps we should say no application to the initial fact, or the fundamental or foundation fact which caused the injury or damage. The doctrine will permit an inference or presumption that the known act — or foundation fact — which produced the injury (proximate cause) was a negligent act, but it will not permit such an inference or presumption as to just what foundation fact did produce the injury — or, in other words, as to what act was the initial cause of the damage. Thus the doctrine cannot be applied where the thing which actually caused the injury or damage is unknown; but when it is known and disclosed and relied upon as the basis of the damage or injury, the application of the doctrine of res ipsa loquitur will infer negligence in the doing of the thing, or in the commission of the act (45 C. J. 1212; Emigh v. Andrews, supra, and cases cited therein at page 735). We said in the last cited case that the inference arises only from the foundation fact after it is known and established, and cannot act to supply a foundation fact.” (p. 486.) (Emphasis added.)
(See, 65 C. J. S., Negligence, § 220[4], to the same effect.)
The plaintiff in her brief, in placing a construction on her .own amended petition in reliance upon the Hulme case, states that the foundation facts clearly established show:
“. . . that appellant, Union Gas, owned, used, serviced and maintained an underground gas system in property immediately adjacent to plaintiff’s building, that the gas system was underground, filled with gas and gaseous vapors or fumes which escaped or leaked from an underground opening of said gas .lines, owned, used and maintained by defendant Union Gas, which lines extended into plaintiff’s house from the adjacent premises and from a point where other defendants were working or had been recently working and went directly from those premises into said house; that the use and maintenance of said lines were exclusive in Union Gas as well as the condition and repair of the underground gas lines, that said gas fumes and vapors came into the house of the plaintiff through ‘no fault or negligent acts or omissions of plaintiff’ and that plaintiff does not know and does not attempt to allege the specific acts or omissions of negligence of defendants but that the escape of said gas and fumes into plaintiff’s house and explosion on the plaintiff’s premises was an occurrence which would not have taken place except for the negligent acts of defendants, including appellant, in the use, maintenance and service of the gas line which caused it to leak, or permitted the escape of large and dangerous quantities of such gas, and that the negligence was the direct and proximate cause of said damages, the facts of which negligence was peculiarly within the superior knowledge of defendants, including Union Gas. . . .” (Emphasis added.)
*698This may be summarized to say that the cause of the injury is alleged to be an opening or leak in the gas line (the instrumentality), as a result of the maintenance of the gas line by the defendant Union Gas or as a result of the work around it in the excavation, removal of trees or other operations of defendants other than Union Gas. (In fact, plaintiff has so summarized it in her brief answering the defendant, Charles P. Trager, whose demurrer to the amended petition herein is treated in Case No. 40,882.)
The plaintiff’s conception of the doctrine of res ipsa loquitur, as it relates to the amended petition is further clarified by the following remark from her brief:
“Even against the allegation of appellant that the instrumentality (gas pipe line) was not destroyed and was subject to inspection, plaintiff would not have been able to tell what caused the gas line to leak, whether it was poor maintenance, defective condition of the pipe, caused by wear and tear, which would have been the exclusive duty of appellant Union Gas, or whether it was the operations upon said property by the other defendants. However, in view of the highly dangerous, explosive and harmful character of escaping gas, it is certainly a fair, logical, and reasonable conclusion that gas does not escape and come into houses of people without negligence of someone. The duties and control of said gas line by appellant Union Gas creates a fair and reasonable inference that said appellant was negligent.” (Emphasis added.)
Conceivably, the plaintiff could have alleged a good cause of action under the doctrine of res ipsa loquitur against Union Gas alone, but in my opinion the effort to include the other defendants by showing that it was possibly their negligence which caused plaintiff’s injury makes the amended petition fatally defective.
The plaintiff contends that:
“Even if it be held that Union Gas did not excavate, or dig trees, it did have exclusive possession and control of the lines for use and maintenance, while co-defendants Skelly Oil, Modern Builders, and Trager, having no duty toward maintenance of the line, nevertheless were joint actors, tort-feasors, whose alleged negligence can reasonably be inferred from the location of the work, and the circumstances of the escaping gas and resultant explosion and damage.”
In my opinion the argument is untenable that Union Gas is a joint tort-feasor with the other defendants since no such relationship can be inferred from the allegations of the amended petition.
As previously stated, the general rule is that the doctrine of res ipsa loquitur is inapplicable unless the management and control of the injuring agency (instrumentality) were exclusively in the person charged at the time of the injury, or, as modified by this court *699where the circumstances require, at the time of the negligence. (Nichols v. Nold, supra; and Lamb v. Hartford Accident & Indemnity Co., supra.)
In 65 C. J. S., Negligence, § 220.(8), p. 1018, it is said:
“The term ‘exclusive,’ when used to define the quantity of the possession, control, or management by defendant of the injurious agency is not employed in the sense that such possession, control, or management must be several and the defendant singular and never plural. What is meant by the term is that the possession, control, or management must be exclusive against all who do not have a concurrent joint possession, control, or management in fact, either as joint actors, possessors, or users in respect of the injurious agency, or by way of representation.”
To sustain plaintiff’s position, in view of her admissions, it would be necessary to say that Union Gas was a joint user of the gas line (the instrumentality) with the defendants other than Union Gas to make them joint tort-feasors. To so construe the amended petition would require the inference that “user” with reference to the defendants other than Union Gas was equivalent to “mis-use,” tortious, negligent acts pertaining to the instrumentality. (This is the precise argument advanced by plaintiff in her answering brief to the defendant Skelly Oil Company, Case No. 40,856, on plaintiff’s amended petition herein, where plaintiff said “. . . Counsel [for Skelly Oil] has only asserted that Skelly Oil did not have ‘control’ of the pipeline. As already set out, ‘control’ does not mean intentional use of it, but perhaps ‘mis-use,’ tortious, negligent acts pertaining to it. At least, prima facie”)
Thus, we have an attempt to construe the intervention of a negligent act by third persons as an act jointly committed with Union Gas to circumvent the law in this state under the doctrine of res ipsa loquitur.
Another attempt to circumvent the doctrine of res ipsa loquitur established by the decisions of this court is made by the plaintiff in quoting from Sweeney v. Erving, 228 U. S. 233, 240, 33 S. Ct. 416, 57 L. Ed. 815, as follows:
“. . . res ipsa loquitur means [1] that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; [2] that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to b.e weighed, not necessarily to be accepted as sufficient; [3] that they call for an explanation or rebuttal, not necessarily that they require it; [4] that they make a case to be decided by the jury, not that they forestall the verdict . . .” (Emphasis added.)
*700It is true that the foregoing statement is made in the Sweeney case but it is isolated and quoted apart from context. The remainder of the paragraph following the quoted portion reads-:“Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.” (Emphasis added.) The Sweeney casé had previously set forth the recognized standards for the application of the doctrine of res ipsa loquitur and the omitted sentence indicating that res ipsa loquitur, “where it applies” had reference to the requirements of the doctrine previously stated in the opinion. The quoted portion was given only with reference to the burden of proof which shifted to the defendant after the presumption obtained.
In Travelers Ins. Co. v. Hulme, supra, it has been shown that where the foundation fact which caused the injury is conjectural the doctrine of res ipsa loquitur will not apply. Thus, in Starks Food Markets, Inc., v. El Dorado Refining Co., supra, where it was sought to invoke the doctrine against plural defendants the court sustained demurrers to the plaintiff’s petition and in support of their ruling stated:
“. . . If on trial the facts alleged were all that were shown, the trier of the fact could only indulge in conjecture as to the cause of the fire. In such case the doctrine of res ipsa loquitur should not be applied.” (p. 583.)
This court quoted the foregoing language with approval in Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P. 2d 252, and in Emigh v. Andrews, supra. If, on the trial, of the instant case the facts alleged in the plaintiff’s amended petition were all that was shown, the trier of the fact could only indulge in conjecture as to the cause of plaintiff’s injury. There would be no way to determiné which defendant was responsible.
If the plaintiff has sought by her amended petition to charge the defendant Union Gas or the other defendants herein with control of some instrumentality, other than the gas line, (refuted by the allegations of the amended petition itself, and not asserted by the plaintiff in her brief) which may have been the proximate cause of her alleged' injury, the amended petition herein must fail, since it would then leave the trier of the fact to pure conjecture as to the base .fact involved, to.-wit: The instrumentality causing the injury. (Starks Food Markets, Inc., v. El Dorado Refining Co., supra; Waddell v. Woods, supra; Woosley v. Erickson, supra; and Emigh v. Andrews, supra.)
*701It is submitted that when plaintiff’s amended petition is viewed in the light of the rules of law above set forth, the trial court erred in overruling the demurrer of the defendant Union Gas to the plaintiff’s amended petition.
In paragraph 13 of the plaintiff’s amended petition plaintiff states in substance that the explosion- and damages to the plaintiff’s property were the direct and proximate result of some negligent acts or omissions of the defendants while they were in the exclusive possession and control of said premises, on which they were working, and over the gas lines upon said premises.
The defendant Union Gas was not working on the premises, and in paragraph 10 of the plaintiff’s amended petition plaintiff states in substance that the gas was coming into plaintiff’s house from an opening in the gas pipe line from a point near or on the premises where the defendants, the Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager, were or had.recently been working and operating.
Plaintiff further states in paragraph 7 of her amended petition that: “. . . on and prior to October 31, 1955, defendants The Skelly Oil Company and Modern Builders, Inc., and Charles P. Trager were engaged in excavation and building activities . . .” at “a place commonly known as the Snepp property, and for that purpose drove heavy equipment over the earth, removed trees, and excavated and dug into the ground for foundations for a building, or for tanks, or utilities or other installations;”.
In paragraph 8 of the plaintiff’s amended petition she alleges that she owned the premises directly south of the alley “adjacent to the premises on which defendants The Skelly Oil Company and Modern Builders, Inc., and Charles P. Trager were working or operating;”.
In view of the above quoted portions of the plaintiff’s amended petition, and from the reading of plaintiff’s amended petition as a whole the plaintiff inferentially, -and actually, alleges that the proximate and direct cause of the injury to the plaintiff probably was the intervention of the defendants other than Union Gas.
In my opinion the order of the trial court overruling the demurrer of the defendant Union Gas to the amended petition of the plaintiff should be reversed.
Parker, C. J., and Price, J., concur in' tire foregoing dissenting opinion.