dissenting:
I am unable to concur in the decision of the Court for two reasons: First, in my opinion, the evidence does not establish negligence on the part of defendant; and, second, assuming that negligence of defendant was sufficiently proved, there is no fact or facts proved from which it can be inferred that the damages resulting from the explosion and fire were the results of such negligence. The law relating to these two propositions is well stated in the majority opinion: “Before a public utility, distributing gas to private consumers, may be held liable for an explosion or fire, it must be shown by a preponderance of the evidence that the explosion or fire was caused by negligence of the utility company and that such negligence was the proximate cause of the fire or explosion.”
*358Since the majority relies solely on the evidence of the witness Bierer to reach the result different from that reached in the prior hearing in this Court, and also approves the principles of law adhered to in the former opinion, I need now consider only the testimony of that witness, in the light, of course, of the evidence found in the present record. The only testimony of that witness which could possibly relate to negligence of defendant related to the gate valve which, after the explosion, was found to be broken. The witness had no personal knowledge of that fact, since his first examination of the premises where the explosion occurred was more than two years after the explosion and the removal of the gate valve. The witness’ theory, concerning which he was permitted to state an opinion, commenced with a supposition that gas escaped from the gate valve, traveled through porous soil, the porosity of the soil not being even indicated, except that the witness described the soil under the sun porch as “just loose dirt”, and entered the open air space under the sun porch; that after reaching the open air space underneath the sun porch it separated itself from the open air and passed through the floor of the sun porch to the ceiling thereof; that after accumulating against the ceiling in such quantities and under such pressure as necessary, it flowed through doors, or openings around doors, into each room of the dwelling, including the room on the third floor, and the basement, until exploded. I suppose I will have to disregard the evidence of the witness who removed the gate valve shortly after the explosion, as the majority did, though it is credible and not disputed, to the effect that to remove the gate valve “It was neccesary to cut through the concrete of Fayette Street, in order to make an excavation or an opening around this gate valve. From the yery top of this gate valve to the very bottom, — and incidentally, we had to dig ten inches underneath this gate, valve, in order to put our cutters on, — from the top to ten inches below this gate valve, this ground was firm.” It will be noticed that Bierer’s evidence makes *359no reference to any fact even relating to the question of negligence, except possibly that there was a “leaky” gate valve. The only facts referred to by the majority as having relation to negligence of defendant are that an employee of defendant “patrolled the line” on Fayette Street; that there was a “leaky” gate valve; that there was a fire under the sun porch which went out upon closing the gate valve; and that there was gas in other buildings near the Stenger dwelling. Each fact mentioned was fully developed on the first trial. After examination, and re-examination more than once, I am fully convinced that the majority mentions every fact, proved or which might be inferred, having any tendency toward establishing negligence of defendant.
I need point out only briefly why the facts proved, in my opinion, are insufficient to establish negligence. In the first place, the existence of the “leaky” or broken gate valve does not prove negligence. The break or the leak must be the result of negligence, and the burden of proving negligence was upon the plaintiffs. Such a break may occur in many ways without fault of the owner. Unless the failure of the employee who patrolled the gas line to discover the leak, or to discover the broken valve, or a weakness in the valve which would probably result in its being broken, be so considered, there is no possible indication of negligence on the part of defendant. As pointed out by the majority, the res ipsa loquitur rule can not be applied in this type of case. It is true that there is testimony to the effect that gas bubbles were seen coming from around or through vents in the cover over the gate valve box and that such fact was reported to the predecessor in title of defendant. Transfer of the property to defendant was in December, 1950, and the explosion occurred on January 27, 1952, so that, necessarily, such report was made a considerable time before the explosion, and the existence of the “bubbles” at the time of the report does not necessarily, or inferentially, have any relation to the defect, if there was a defect, or to the breaking of the gate valve. There is not even a *360contention that defendant had any notice or knowledge of the broken condition of the gate valve before the explosion. Neither can I find an inference of negligence in the fact that a fire burning under the sun porch ceased to burn at about the time of the closing of the gate valve. It may as reasonably be assumed that the fire was from gas which escaped from the service lines of plaintiffs or from any one of the service lines of properties in the immediate vicinity, as to assume, or speculate, that it flowed from the gate valve, perhaps more so since all the evidence relating to the escape of gas from the gate valve was to the effect that such gas was flowing into the air through the vents in the gate box cover, not through the concrete or firm earth around the gate valve box, and through the soil between the gate valve to the point where the fire was burning. As to the other fact contended to indicate negligence of defendant, that gas was found in certain other buildings, I think it clearly immaterial, if it does not, in fact, indicating that escaping gas was probably coming from some source or sources other than the gate valve.
Assuming, however, that there is sufficient evidence on which negligence or an inference of negligence may be founded, there is no evidence to support an inference that the explosion which caused the damages was the result of gas which escaped from the gate valve, broken or not broken. Only the theory of the witness Bierer is relied on by the majority to support the conclusion that there is a substantial difference between the proof offered on the prior trial and the proof shown by the record presently before the Court. It should be noticed that Bierer’s first examination of the premises where the explosion occurred was more than two years after the explosion. Therefore, any statement made by him as to “loose dirt” under the sun porch, or any fact observed by him, such as a crack in the basement wall, should be given no consideration. The supposed expert opinion of the witness as to how the gas reached the inside of the dwelling is based on no facts. The fatal *361flaw in the theory or opinion of the witness is that he merely assumed or speculated that gas from the gate valve traveled through the metal gate valve box, or the concrete surrounding that box, and through the soil to the open air space under the sun porch, instead of upward through the vents in the loosely fitting cover over the gate valve box. It seems as reasonable to assume that the explosion was the result of gas escaping from plaintiffs’ own service lines or appliances in the dwelling, or from some other service lines in the near vicinity. The point, however, is that we should not base liability on mere speculation. The balance of the theory of the witness is just as fantastic. Can it possibly be believed that natural gas, after reaching the open air, passed under the sun porch, separated itself from the air, traveled upward through the floor of the sun porch to the ceiling of the sun porch and from there to every room in the dwelling, in sufficient quantities to cause the explosion which destroyed the dwelling? We are not required to believe that which is impossible to believe, even from supposed experts. Matters of common knowledge are not subjects for expert opinions.
Being of the views indicated, I respectfully dissent.