Birdie Irene BIRMINGHAM et al., Petitioners, v. GULF OIL CORPORATION et al., Respondents, 516 S.W.2d 914

ON MOTION FOR REHEARING REAVLEY, Justice. Hope Birmingham was killed by the fall of a crane owned by Gulf Oil Corporation. His widow brought this wrongful death action against Gulf and others. At the close of plaintiff’s case-in-chief, the trial court directed the verdict in favor of all defendants. The Court of Civil Appeals affirmed the take-nothing judgment against plaintiff. 494 S.W.2d 946. We order a new trial as to Gulf; we agree that no cause of action was proved against the other defend-' ants.

In December of 1966 Flournoy Drilling Company contracted with Gulf to work over two oil wells owned by Gulf which were located beneath its drilling platform in the Gulf of Mexico offshore from Mustang Island. This workover operation continued for four months until April 14, 1967, when the equipment belonging to Flournoy was being moved from the platform into a boat for transportation back to land. Hope Birmingham was employed by Flournoy to operate the crane and did so during the entire period of this work at the Gulf wells.

On April 14 he and the other Flournoy employees had virtually completed loading the boat when the accident occurred. A pump had been lifted from the platform and was being held in a stationary position while the boat was moved to the point where the pump could be deposited aboard in the desired place. After a wait of some 8 to 15 minutes while the pump was held by the crane in this position, the crane suddenly toppled, struck the boat and then fell into the Gulf of Mexico. Birmingham fell with the crane to the boat. He died two days later without regaining consciousness.

The fall of the crane was due to a failure of bolts which held it on a mount or pedestal sitting on the drilling platform. The crane was purchased new in January of 1956 by Brewster-Bartle Drilling Company, used during the original drilling of these wells, and then sold in 1957 to Gulf. It remained on this same drilling platform until it fell into the water in 1967. Plaintiff’s efforts at discovery, by interrogatories and depositions, disclosed very little about the use, repair and maintenance of the crane — and, in particular, the bolts at its base — except that Gulf itself was without information.

On at least three occasions, independent contractors had worked on the crane to keep it operational. Apparently ho inspection or precaution had been taken for the maintenance or replacement of the bolts which secured the base of the crane. The Gulf employee in charge of repair and maintenance knew of no inspection having ever been made nor whether the bolts had ever been removed or tested.

He had directed the crane dealer, Head & Guild Equipment Company, to make repairs “as needed” prior to the beginning of the Flournoy workover, but the Head & Guild personnel only checked the operation of the moving parts of the crane. Plaintiff called an expert witness, a metallurgist, who testified from a visual examination of the remains of the bolts that their failure was due to metal fatigue.

He explained that the cause of fatigue is cyclic loading or stressing of the metal, and he said that these bolts would not be expected to reach fatigue unless subjected to more than a million stresses at weights exceeding 52,500 pounds (half the tensile strength of the bolts). It was the opinion of the witness that repetitive loads in excess of this weight preceded the collapse of these bolts. Gulf apparently contends that Birmingham had overloaded the crane and that this was the cause of the collapse, but the evidence in the record at the point of the directed verdict was to the contrary.

If Gulf owed a duty to Birmingham and if there is evidence of a breach of that duty which proximately caused Birmingham’s death, Gulf was not entitled to an instructed verdict. Birmingham was an invitee on Gulf’s platform and in operating its crane, and to him Gulf owed the duty to take reasonable precautions to protect against foreseeable danger. Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972) ; Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941).

The Court of Civil Appeals has held that there was no evidence of negligence on the part of Gulf and, further, that there was no evidence of proximate causation linking a failure of Gulf to Birmingham’s injury. It was the duty of Gulf to exercise care to see that Birmingham would have a safe place in which to work. Gulf personnel knew, as do we, that heavy machinery requires regular maintenance and that load-bearing parts must be inspected and replaced, at intervals of time which depend upon the instrumentality and its use, or ultimately the machinery will collapse.

Reasonable men know that these precautions are required and foresee dangerous consequences if nothing is done. The physical circumstances here make it impossible for the plaintiff to prove the precise mechanism of the metal failure in the bolts and to prove the time at which each stage in that process occurred. The law does not bar recovery by plaintiff in such case; it “only demands the best proof of a transaction that it is susceptible bf, and when that is produced then it becomes a question whether or not its probative force is such as to establish its existence.” Miller v.

Fleming, 149 Tex. 368, 233 S.W.2d 571, 575 (1950). To recover for an injury claimed to have been caused by tortious conduct of the defendant, the plaintiff is only required to prove that an accident probably resulted from the negligence of the defendant. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); Burlington-Rock Island R. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943). Both negligence and proximate cause may be established by circumstantial evidence. J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698 (1940); Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App.1919).

The plaintiff Birmingham alleged that Gulf failed to make proper inspection and to discover the danger of the bolts. The inability to establish that a reasonable inspection would have led to timely detection of metal fatigue of the bolts presents this plaintiff with the impossible problem of proof which confronted the Court in Texas Sling Co. v. Emanuel, 431 S.W.2d 538 (Tex.1968).

It should not be a satisfying result if, under the facts of the case, Gulf has taken no precautions to keep its crane from collapsing and then, when sued for the harm done, Gulf need only to answer that the plaintiff cannot pinpoint a moment when careful inspection routine would have discovered metal fatigue and averted the harm. In the present case the plaintiff did not stop with allegations of particular acts of negligence but specifically and expressly pleaded the “doctrine of res ipsa loquitur” and alleged that the calamity was one which would not have occurred without the negligence of Gulf.

If the physical circumstances of this accident lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and if the instrumentality which caused the injury is shown to have been under the management and control of the alleged tort-feasor, the negligence of that alleged tort-feasor may be inferred from the mere fact that the accident happened under those physical circumstances. Bond v. Otis Elevator Company, 388 S.W.2d 681 (Tex.1965) ; Clark-Daniel’s, Inc. v. Deathe, 131 SW.2d 1091 (Tex.Civ.App.1939, writ ref’d); McCray v. Galveston H. & S. A. Ry.

Co., 89 Tex. 168, 34 S.W. 95 (1896). With or without help of the Latin words, the case at hand seems to be a typical one where the circumstances themselves present a fact issue of the defendant’s negligence. Cranes weighing seven tons do not usually tear loose from their bases without someone being at fault. Since Gulf was in control of the bolts which collapsed, it is inferable that the failure would not have occurred without the negligence of Gulf. The jury was entitled to find that Gulf was probably negligent and that the negligence probably caused the collapse. On the other hand, the jury might not so find.

Furthermore, Gulf could avoid liability by proving that the collapse of the crane was either due to a physical cause beyond its control or to some failure that reasonable precautions on its part would not have prevented or discovered. The Court of Civil Appeals ruled against plaintiff’s res ipsa contention for the reason that since Hope Birmingham was operating the crane at the time of the collapse, he was in control rather than Gulf. We do not agree.

The crane operator did not relieve the crane’s owner of responsibility for safety of the bolts which held the crane upon its mount simply by his operation of the crane. The passenger in an elevator or the one at its controls does not become responsible for the mechanism of the elevator. Bond v. Otis Elevator Company, supra.

When plaintiff takes possession and physical control of a Coca-Cola bottle which then bursts in his hands, application of the res ipsa rule of evidence is not precluded so long as the jury is entitled to find that the bottle was not mishandled or damaged after delivery to the plaintiff by the defendant. Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S. W.2d 546 (Tex. 1969); Honea v. Coca-Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445 (1944).

The control that is required for the application of. the res ipsa rule is not necessarily control exercised at the time of the injury, but it may be control exercised at the time of the negligent act which subsequently leads to the injury. Peterson v. Minnesota Power and Light Company, 207 Minn. 387, 291 N.W. 705 (1940); Prosser, Torts, 219 et seq. (4th ed. 1971). Furthermore, a distinction should be made between control over the movement of the machine and responsibility for the particular instrumentality which caused the accident. Morris, Res Ipsa Loquitur in Texas, 26 Tex.L.Rev. 257, 263 (1948).

Petitioner Birdie Irene Birmingham’s Motion for Rehearing is granted. Our former judgment is set aside and the opinion of June 26, 1974, is withdrawn. The cause of action asserted by Mrs. Birmingham against Gulf Oil Corporation is severed from her cause of action asserted against Head & Guild Equipment Company, Diamond M Drilling Company, Inc., Flournoy Drilling Company, and Koehring Company. The judgments of the trial court and the Court of Civil Appeals relating to the claim against Gulf Oil Corporation are reversed and said cause of action is remanded to the trial court for a new trial.

The judgments in favor of the other defendants, as severed, are affirmed. DENTON, J., dissents and filed opinion in which GREENHILL, C. J., and DANIEL, J., join.