The opinion
Lovins, Judge,
dissenting:
I respectfully dissent from some of the conclusions set forth in the Court’s opinion in the instant case. The application of the doctrine of res ipsa loquitur is denied *471 upon the authority of Veith v. Salt Co., 51 W. Va. 96 , 41 S. E. 187 , and other eases cited.
I think the explosion in the instant case, as indicated in the Court’s opinion, was a natural gas explosion, rather than an explosion of a steam boiler. True, the explosion took place in the “breeching” of a steam boiler, but it is clear, at least to me, that the natural gas which should have been ignited by the automatic burner, moved to that part of the boiler, and was, by some means or other, exploded. I would characterize the cause of decedent’s death as an explosion of a heating agency, rather than the explosion of steam in a boiler.
Bearing that distinction in mind, I think that the following rule should be applied: “The rule in West Virginia is that the mere occurrence of a gas explosion does not give rise to the doctrine of res ipsa loquitur. The doctrine may be applied if the cause of the explosion is traced to an instrumentality controlled exclusively by the defendant”. Agsten v. United Fuel Gas Co., 117 W. Va. 515, 522 , 186 S. E. 126 . The rule so stated in the Agsten case is supported by the cases therein cited. Groff v. Gas Co., 110 W. Va. 54, 59 , 156 S. E. 881 ; Bell v. Develop. & Gas Co., 106 W. Va. 155, 163 , 145 S. E. 165 ; Laurent v. Gas Co., 101 W. Va. 499 , 133 S. E. 116 ; Window Glass Co. v. Oil and Gas Co., 63 W. Va. 202 , 59 S. E. 959 . In the Laurent case, this Court pointed to the fact that in order to apply the rule of res ipsa loquitur, the premises where the explosion occurs must be in the sole control of the gas company transmitting gas to such premises.
No such question here arises in this case. The gas company furnishing the gas is not charged with the death of the plaintiff decedent. The gist of plaintiff’s action is that the defective construction or operation of an automatic burner under the joint control of defendants herein, caused the accident.
I think that negligence on the part of defendants could be inferred from the proof of facts shown in the record, *472 and the rule of res ipsa loquitur in that situation applies. See Jankey v. Gas Co., 98 W. Va. 412 , 127 S. E. 199 . “Negligence is never presumed. It must be proved. The plaintiffs, however, in this case claim the benefit of the doctrine of ‘res ipsa loquitur’; that is, that the accident itself, with all its surroundings, speaks in such way and is of such a character as to show negligence on the part of the defendant company. And that imposes upon it the burden of rebutting such negligence by proof. This may be one mode of showing that there is proof of negligence, and, if negligence is shown, then that negligence must be met, or the plaintiffs are entitled to recover.” Wood et al. v. Wilmington City Ry. Co., (Del.) 64 Atl. 246, 247 . See Jones v. Bridge Co., 70 W. Va. 374, 376 , 73 S. E. 942 et. seq., where the principle authorizing the application of res ipsa loquitur is elaborated at some length and numerous cases are cited in support thereof. In Snyder v. Wheeling Electrical Co., 43 W. Va. 661, 667 , 28 S. E. 733 , the following is quoted from Scott v. Dock Co., 3 Hurl. & C. 596: . “ ‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’” See Annotation 138 A.L.E. page 909.
Appraising the facts shown here, I think that the rule of res ipsa loquitur applies to this case. The defendants evidently had joint control of the automatic burner in the fire box. I regard the failure of the automatic burner or its improper operation, as the real cause of the explosion. The explosion dislocated the boiler, which in turn caused a pipe leading from it to break its connection, and the decedent was burned to death by escaping steam. Such accidents do not occur in the ordinary course of operation. The decedent at the time of his fatal injury was on the premises, engaged in lawful activities, being a workman employed by a sub-contractor. He had a right *473 to expect proper, sufficient and efficient care in the operation of the automatic burner. It is not a defense to say that the burner was an integral unit ready for installation in the fire box of the boiler. The description of the burner in the Court’s opinion clearly discloses that it was a complicated piece of machinery which failed to operate properly and caused the explosion. This, to me, is sufficient to indicate that the inference of negligence is not met either by conclusive evidence or a clear preponderance of proof.
I do not argue against the rule that the explosion of steam confined in a steam boiler calls for application of the principle res ipsa loquitur, but I do think that the failure of a complicated mechanism causing an explosion of natural gas used as a heating agency, is such as to call for the application of the rule res ipsa loquitur, and that the presumption of negligence so' arising has not been rebutted in this case. The combination of the burner using natural gas, automatically igniting and shutting off the gas was a dangerous instrumentality.
The admission of testimony of the expert witness, Raper, constituted reversible error, and for that reason alone, I would reverse the judgment of the Circuit Court of Kanawha County, but not on any other ground.