Defendant presents two arguments here. First, it contends that plaintiff did not plead that the instrumentality complained of was destroyed or was inaccessible for inspection by the plaintiff to ascertain what defect existed in it, and that such allegation is essential to invoke the doctrine of res ipsa loquitur on which plaintiff seeks to rely. Johnson v. Latimer, 180 Kan. 720, 308 P.2d 65 is cited in support of this contention. Defendant next maintains that the doctrine cannot be invoked where there are several causes which might have produced damage, some of which were under the control of persons other than Union Gas, and that here plaintiff's allegation of the operations of Skelly Oil, Modern Builders and Trager removes the availability of the doctrine as to Union Gas.
"It is thus apparent that the Missouri interpretation of the rule coincides with the general view that the doctrine is not applicable where the control or right of control of the instrumentality causing the injury was not in the defendant at the time of the injury." The rule in Kansas is of like effect, Starks Food Markets v. El Dorado Refining Co., 156 Kan. 577, 134 P.2d 1102, 1105; Franks v. Groendyke Transport, Inc., 10 Cir., 229 F.2d 731, 734, and cf. Johnson v. Latimer, 180 Kan. 720, 308 P.2d 65, 68, which recognized, as we do, the distinguishing feature of Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887, here relied upon by plaintiff. Although plaintiff makes the broad assertion that there was probative evidence from which a jury could find the defendant was negligent in manufacturing, inspecting and supplying the bulb tee which fractured, the specific evidence to support the charge has not been brought to our attention, and, we may add, a painstaking analysis of the record convinces us that there was a total failure of proof in this respect.
See Clay v. Butane Gas Corp., 151 Neb. 876, 39 N.W.2d 813; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P.2d 270, 275, 276; Grinnell v. Carbide Carbon Chemicals Corp., 282 Mich. 509, 276 N.W. 535, 540; Davidson v. American Liquid Gas Corp., 32 Cal.App.2d 382, 89 P.2d 1103; Breed v. Philgas, 118 Conn. 128, 171 A. 14; Richey Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wn.2d 631, 134 P.2d 444. Defendant cited the following cases: Rollins v. Avey, Ky., 296 S.W.2d 214; Johnson v. Latimer, 180 Kan. 720, 308 P.2d 65; Wightman v. Mountain Fuel Supply Co., 5 Utah 2d 373, 302 P.2d 471; Rural Natural Gas Co. v. Arvin, Ky., 270 S.W.2d 610; Niswander v. Kansas City Gas Co., Mo. App., 181 S.W.2d 165; Spruell v. Georgia Automatic Gas Appliance Co., 84 Ga. App. 657, 67 S.E.2d 178; Boyce v. Northern Utilities Co., 75 Wyo. 500, 297 P.2d 820. All but Boyce involve res ipsa loquitur rather than specific negligence and in all instances the circumstantial evidence establishing proximate cause was much less satisfactory. Rollins v. Avey is the closest factually.
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 the burden of proof in negligence cases by merely asserting the doctrine itself. ( Johnson v. Latimer, 180 Kan. 720, 308 P.2d 65.) The doctrine is a rule of evidence and not one of substantive law. In actions for damages because of the defendant's negligence, the general rule is that the negligence of the defendant is never presumed, but must be established by proof.
In determining whether the amended petition, judged upon its merits and standing alone, warrants the application of the doctrine of res ipsa loquitur against Simlo, we keep in mind that three essential elements must be alleged to establish a prima facie case, namely, the defendant must have management and control of the instrumentality which, at that time or later, caused the injury; the circumstances must be such that according to common knowledge and the experience of mankind, the injury would not have occurred without negligence on the part of those having management and control, and that plaintiff's injuries resulted from the occurrence, and that he was free from fault ( Worden v. Union Gas System, supra). We also keep in mind the further rule that it is incumbent upon the plaintiff to show fully a situation where the doctrine is applicable, otherwise there may be an attempt to shift the burden of proof in negligence cases by merely asserting that the doctrine is applicable ( Johnson v. Latimer, 180 Kan. 720, 308 P.2d 65). In support of its contention that the district court erred in overruling its demurrer Simlo first argues there were two instrumentalities involved in plaintiff's injury — the plaintiff's truck which was under his management and control, and the truck hoist which was under the exclusive management and control of the grain company — hence, the doctrine may not be applied to it.
The holding in the Lamb case is not helpful to the appellant in this case on that theory because certainly appellant here had a great deal more control of the washing machine than defendant had over the truck in the Lamb case. As to the matter of control, appellant cites the case of Johnson v. Latimer, 180 Kan. 720, 308 P.2d 65. That case involved the escape of carbon monoxide gas from a furnace in plaintiff's own house. The majority of the court there held that the furnace was available to the plaintiff and under his control and he could, therefore, inspect the same and allege what defects existed therein.