The opinion of the court was delivered by
Wertz, J.:
This appeal raises the question of the sufficiency of the petition to state a cause of action based on the doctrine of res ipsa loquitur. The trial court overruled demurrers to the amended petition by each of the four defendants. This appeal is by defendant Union Gas System, Inc.
Plaintiff (appellee) is the owner of a private dwelling in Olathe. Defendant (appellant) Union Gas owns and maintains underground gas service lines along the alley north of and adjacent to plaintiff’s premises. Across the alley, on premises known as the Snepp property, The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager were engaged in excavation and other activities for the construction of a building. On October 81, 1955, plaintiff’s house was filled with gas or fumes which suddenly and violently exploded, causing fire and other destruction to the house. Plaintiff brought this action against Union Gas System, Inc., The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager, alleging that the gas or fumes escaped or leaked from an opening in the pipe line maintained by Union Gas at a point near or on the premises where the other defendants had been excavating, removing trees and driving their heavy equipment.
[687]*687Plaintiff alleged that the gas came into her house without any fault or negligence on her part; that it came from premises exclusively and solely within the management, possession and control of each and all of the defendants; and that the escape of fumes was an occurrence which would not have taken place except for some negligence of the defendants. She further alleged that the explosion and damages were the direct and proximate result of some negligent acts or omissions of the defendants; that she did not know and could not allege the specific acts or omissions of the defendants; and that the facts were peculiarly and exclusively within the knowledge of the defendants.
Inasmuch as each of the four defendants filed a separate demurrer to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action, a copy thereof, with formal parts omitted, is appended hereto. Each of the demurrers was overruled and from that order Union Gas brings this appeal.
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.
The only question before us is the sufficiency of the petition to state a cause of action based on res ipsa loquitur. This court has repeatedly held that the doctrine is,a rule of evidence, rather than one of substantive law, and that cases dealing with the question of sufficiency of proof are authority on the question of pleading. Therefore, the petition must be held sufficient if it contains allegations of fact which, if proved, would warrant application of the doctrine. (Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016; [688]*688Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, and cases cited therein.)
It is hornbook law that negligence is never presumed but must be established by proof; that the occurrence of injury does not establish liability; and that where direct proof is lacking circumstantial evidence may be used to prove negligence. One type of circumstantial evidence is that which courts have given the name of res ipsa loquitur.. Whether the doctrine, which means simply “the thing speaks for itself,” is to be applied depends on the character of the accident and the circumstances under which it occurred. We stated in Lamb v. Hartford Accident & Indemnity Co., supra, that when a thing which causes injury without fault of the injured person is shown to be under the management and control of the defendant or his servants, and the injury is such as in the ordinary course of things does not occur if the one having such management or control uses proper care, it asserts reasonable evidence in the absence of an explanation, the injury arose from the defendant’s want of care. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; Starks Food Markets, Inc., v. El Dorado Refining Co., supra, 582; Waddell v. Woods, supra; Sipe v. Helgerson, 159 Kan. 290, 291, 153 P. 2d 934; Waterbury v. Riss & Company, 169 Kan. 271, 288, 219 P. 2d 673; Nichols v. Nold, 174 Kan. 613, 621, 258 P. 2d 317, 38 A. L. R. 2d 887; Waddle v. Brodbeck, 176 Kan. 583, 272 P. 2d 1066; Shain, Res Ipsa Loquitur, p. 1; Prosser on Torts § 43 [1941].) It has been stated repeatedly that the force and justice of the doctrine stem from the consideration that the defendant in control of the instrumentality has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances. (Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P. 2d 601; Wigmore on Evidence § 2509 [3d ed.].)
Measuring the allegations of the petition in the instant case against the three stated requirements for invocation of the doctrine, it is clear that the petition is sufficient to establish a prima facie case based on res ipsa loquitur. Plaintiff alleged lack of fault or contributory negligence on her part; she alleged that exclusive control of all instrumentalities which could have produced the damages was at all times in the defendants, and she plead circumstances which, if proved, indicate that the accident would not have oc[689]*689curred absept negligence on the part of those in control. The,alleged circumstances of plaintiff’s damage, if proved, warrant application of the doctrine of res ipsa loquitur.
Johnson v. Latimer, supra, upon which defendant relies, is not applicable here; Clearly, the instrumentalities alleged to have produced the damage in the instant case' were at no time in the possession, management or control of the plaintiff, nor were they in any way accessible to her.
Similarly, defendant’s second contention is without merit. It is well settled in this state that the doctrine of res ipsa loquitur is applicable as against multiple defendants. (Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887; Waterbury v. Riss & Company, supra; Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404.) In Nichols v. Nold, supra, plaintiff, who was injured by the explosion of a bottle, of, Pepsi-Cola, sued the manufacturer, distributor and retailer of the drink, relying on the doctrine of
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The opinion of the court was delivered by
Wertz, J.:
This appeal raises the question of the sufficiency of the petition to state a cause of action based on the doctrine of res ipsa loquitur. The trial court overruled demurrers to the amended petition by each of the four defendants. This appeal is by defendant Union Gas System, Inc.
Plaintiff (appellee) is the owner of a private dwelling in Olathe. Defendant (appellant) Union Gas owns and maintains underground gas service lines along the alley north of and adjacent to plaintiff’s premises. Across the alley, on premises known as the Snepp property, The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager were engaged in excavation and other activities for the construction of a building. On October 81, 1955, plaintiff’s house was filled with gas or fumes which suddenly and violently exploded, causing fire and other destruction to the house. Plaintiff brought this action against Union Gas System, Inc., The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager, alleging that the gas or fumes escaped or leaked from an opening in the pipe line maintained by Union Gas at a point near or on the premises where the other defendants had been excavating, removing trees and driving their heavy equipment.
[687]*687Plaintiff alleged that the gas came into her house without any fault or negligence on her part; that it came from premises exclusively and solely within the management, possession and control of each and all of the defendants; and that the escape of fumes was an occurrence which would not have taken place except for some negligence of the defendants. She further alleged that the explosion and damages were the direct and proximate result of some negligent acts or omissions of the defendants; that she did not know and could not allege the specific acts or omissions of the defendants; and that the facts were peculiarly and exclusively within the knowledge of the defendants.
Inasmuch as each of the four defendants filed a separate demurrer to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action, a copy thereof, with formal parts omitted, is appended hereto. Each of the demurrers was overruled and from that order Union Gas brings this appeal.
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.
The only question before us is the sufficiency of the petition to state a cause of action based on res ipsa loquitur. This court has repeatedly held that the doctrine is,a rule of evidence, rather than one of substantive law, and that cases dealing with the question of sufficiency of proof are authority on the question of pleading. Therefore, the petition must be held sufficient if it contains allegations of fact which, if proved, would warrant application of the doctrine. (Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016; [688]*688Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, and cases cited therein.)
It is hornbook law that negligence is never presumed but must be established by proof; that the occurrence of injury does not establish liability; and that where direct proof is lacking circumstantial evidence may be used to prove negligence. One type of circumstantial evidence is that which courts have given the name of res ipsa loquitur.. Whether the doctrine, which means simply “the thing speaks for itself,” is to be applied depends on the character of the accident and the circumstances under which it occurred. We stated in Lamb v. Hartford Accident & Indemnity Co., supra, that when a thing which causes injury without fault of the injured person is shown to be under the management and control of the defendant or his servants, and the injury is such as in the ordinary course of things does not occur if the one having such management or control uses proper care, it asserts reasonable evidence in the absence of an explanation, the injury arose from the defendant’s want of care. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; Starks Food Markets, Inc., v. El Dorado Refining Co., supra, 582; Waddell v. Woods, supra; Sipe v. Helgerson, 159 Kan. 290, 291, 153 P. 2d 934; Waterbury v. Riss & Company, 169 Kan. 271, 288, 219 P. 2d 673; Nichols v. Nold, 174 Kan. 613, 621, 258 P. 2d 317, 38 A. L. R. 2d 887; Waddle v. Brodbeck, 176 Kan. 583, 272 P. 2d 1066; Shain, Res Ipsa Loquitur, p. 1; Prosser on Torts § 43 [1941].) It has been stated repeatedly that the force and justice of the doctrine stem from the consideration that the defendant in control of the instrumentality has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances. (Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P. 2d 601; Wigmore on Evidence § 2509 [3d ed.].)
Measuring the allegations of the petition in the instant case against the three stated requirements for invocation of the doctrine, it is clear that the petition is sufficient to establish a prima facie case based on res ipsa loquitur. Plaintiff alleged lack of fault or contributory negligence on her part; she alleged that exclusive control of all instrumentalities which could have produced the damages was at all times in the defendants, and she plead circumstances which, if proved, indicate that the accident would not have oc[689]*689curred absept negligence on the part of those in control. The,alleged circumstances of plaintiff’s damage, if proved, warrant application of the doctrine of res ipsa loquitur.
Johnson v. Latimer, supra, upon which defendant relies, is not applicable here; Clearly, the instrumentalities alleged to have produced the damage in the instant case' were at no time in the possession, management or control of the plaintiff, nor were they in any way accessible to her.
Similarly, defendant’s second contention is without merit. It is well settled in this state that the doctrine of res ipsa loquitur is applicable as against multiple defendants. (Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887; Waterbury v. Riss & Company, supra; Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404.) In Nichols v. Nold, supra, plaintiff, who was injured by the explosion of a bottle, of, Pepsi-Cola, sued the manufacturer, distributor and retailer of the drink, relying on the doctrine of res ipsa loquitur to establish negligence. This court held the doctrine properly invoked against all the defendants, declaring:
“The fact that plaintiff did not know which one of the defendants was guilty of the negligence which was the cause of the accident . . . was the reason for naming all of them as parties defendant.” (l. c. 620.)
(See also 65 C. J. S. Negligence § 220 ( 8), p. 1014.) Similarly in this case, if plaintiff’s allegations are proved, she is entitled to redress. If the allegations are proved, it is apparent that the damage could have resulted from a defect in the gas line operated and maintained by Union Gas, or from negligence in the operations of the other defendants in the area of the gas line, or from the negligence of both. It would be beyond the ability of the plaintiff to establish which of these possibilities was in fact the cause of the accident. Since defendants were in exclusive control of all the instrumentalities which could have caused the accident, it was proper to invoke the doctrine of res ipsa loquitur against all of them.
Finally, it must be noted that the issues have not been joined, that this appeal is from the overruling of a demurrer and goes solely to the sufficiency of the amended petition. We determine only that plaintiff’s petition is sufficient and that the benefits of res ipsa loquitur pleading cannot be removed from her. When the issues are joined and plaintiff establishes the allegations of her petition by evidence, it will be incumbent upon this defendant to demonstrate [690]*690that it was free from negligence in the operation of its gas line. It follows that the judgment of the trial court is affirmed.
It is so ordered.
This case was decided and the opinion written and concurred in by Hall, J., prior to his resignation from the court.
Jackson, J., not participating.
APPENDIX
“Comes now the plaintiff and for her cause of action against the defendants, states:
“1. That plaintiff’s post office address and residence is 2052 Jamaica Street, Aurora, Colorado;
“2. That defendant Union Gas System, Inc., is a corporation organized and existing under the laws of Kansas with its main office at 122 West Myrtle Street, Independence, Kansas, and is engaged in the business generally of purveying, selling, and supplying natural gas and other products, for profit, to its various customers in private homes, and business establishments, in Kansas, including the City of Olathe;
“3. That defendant The Skelly Oil Company is a corporation organized and existing under the laws of Delaware, duly authorized to do business in Kansas, with its agent for service of process at Topeka, Kansas, and is engaged generally in the business of selling for profit to the general public gasoline, oil, grease and petroleum products, for use in motor vehicles, and for that purpose it provides filling stations, and other places for vending its products;
“4. That defendant Modern Builders, Inc., is a corporation duly organized and existing under the laws of the State of Kansas, and it is engaged in the general business of building homes and business establishments for profit, including the excavation of the earth, and the erection of structures;
“5. That defendant Charles P. Trager, is a citizen and resident of the state of Kansas at Route No. 3, Olathe, and is engaged generally in the business of doing excavation and construction work with machinery;
“6. That at all times herein mentioned, defendant Union Gas System, Inc., owned, used, serviced, and maintained main and [691]*691subsidiary gas lines for the purpose of transporting or conveying gas to its customers, and laid the lines beneath the surface of the earth, under private property, or public ways, and from said main lines said defendant made connections to private and commercial users or customers, to homes and business establishments. On October 31, 1955, and for a long time prior, said Union Gas System, Inc., owned, used, serviced and maintained such gas lines along the alley north of and adjacent to the premises of the plaintiff herein set out, and in the area north of and adjacent to said alley on premises where the other defendants herein were engaged in excavation and building activities as hereinafter set out;
“7. 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 upon premises located adjacent to and at the southwest corner of the public intersection of Kansas Avenue and Loula Street in Olathe, Kansas, 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;
“8. That at all times referred to herein, plaintiff was the owner of the premises, including a private dwelling thereon, legally described as Lots 11 and 12, Block 60, City of Olathe, Kansas, said premises being located on the south side of an east-west alley, immediately south of and adjacent to the premises on which defendants The Skelly Oil Company and Modern Builders, Inc., and Charles P. Trager were working or operating;
“9. That at approximately 11:30 o’clock P. M., on or about October 31, 1955, the aforementioned private dwelling owned by plaintiff, but occupied at that time by one holding possession under plaintiff, and in the absence of plaintiff, was so filled with gas and gaseous vapor or fumes, which suddenly, forcefully and violently exploded, that the dwelling house was rent asunder, causing fire and other destruction to the damage of plaintiff, as set out hereinafter;
“10. That said gas and gaseous vapor or fumes, which came into the house of plaintiff, escaped or leaked from an opening in an underground pipe line owned, used and maintained by defendant Union Gas System, Inc., and extending from a main or subsidiary line on the north side of plaintiff’s house and adjacent to her [692]*692premises and from a point near or on the premises where defendants The Skelly Oil Company, Modern Builders, Inc., and Charles P. Trager were or had recently been working and operating; that said gas, fumes and vapors escaped and came into the premises and house owned by plaintiff through no fault or negligent acts or omissions of plaintiff;
“11. That the gas, fumes and vapors came directly from the premises which were exclusively and solely within the management, possession and control of each and all the defendants in their respective work, maintenance, service or use; and that the condition and repair of said underground gas lines, the excavation, removal of trees and other operations upon the adjoining or adjacent property where defendants were jointly and severally working and operating are all facts peculiarly and exclusively within the knowledge of defendants and each of them, and are not within the ■knowledge of plaintiff;
“12. That plaintiff does not know and does not attempt to allege or describe specific acts or omissions of negligence of which the defendants may have been guilty, and that may have been the proximate cause of the damages to plaintiff; but plaintiff states that escape of gaseous vapors and fumes, the entrance of said fumes into plaintiff’s residence and the explosion thereof on the premises resulting in the damage to plaintiff, was an occurrence which would not have taken place, except for some negligent acts or omissions of defendants in die use, maintenance, service or work on the premises by defendants near or adjacent to the premises of plaintiff which work, maintenance or service in connection with the gas line, caused it to leak, or permitted the escape of large and dangerous quantities of such gas, fumes and vapors;
“13. That such explosion and the damages to plaintiff were the direct and proximate result of some negligent acts or omissions of 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 facts of which are peculiarly within the superior knowledge of defendants and each of them;
“14. That as a result of the negligence of defendants, and each of them, acting individually, or through their employees, agents, and servants, the dwelling home owned by plaintiff, as set out herein, rented to another, and the contents of said home, were thereby damaged, bent, broken, destroyed, ruined, and rendered [693]*693useless, and beyond repair or salvage; that a reasonable market Value of said house or home, separate and apart from the value of the real estate or land upon which it was situated, immediately before said explosion and damage was approximately $10,000, and the reasonable market value of said home or house aside from the land or real estate immediately after the explosion or damage was worth nothing; the reasonable market value of personal property damaged and destroyed in said explosion immediately prior to said explosion was $150, and the reasonable market value of said property immediately following said explosion was nothing.
“Wherefore, plaintiff demands judgment against the defendants, and each of them, in the sum of Ten Thousand One Hundred Fifty Dollars ($10,150.00) and costs.”