¶1dissenting. I cannot agree with the decision of the majority in this case, and feel constrained to express my dissent.
¶2I believe that the defendant’s requests for rulings numbered one to four inclusive, should have been granted.
¶3The evidence appears sufficient to warrant the finding of an agreement to repair the cabinet, and likewise permits the inference that the man who did some work on the cabinet was undoubtedly sent by the landlord and was acting on his behalf and with his knowledge and consent.
¶4My point of difference with the majority relates to the evidence of negligence, which I believe is not sufficient to attribute to either the defendant or his agent.
¶5No date in February is recited when the defendant’s agent worked on the cabinet, be it early or late. The accident occurred on March i ith with no evidence as to what went on at this apartment during the interim. The report does indicate that during this period of time the plaintiff and her family continued to occupy the apartment as they had previously to January, 1961, when the conversation relative to rent increase and repair of the cabinet first took place, and that the same was in the control of the plaintiff as the tenant at all times.
¶6There is no evidence that either the defendant or the man whom he sent to repair *143the cabinet ever returned during this interval of time, nor that either of them was at the apartment on the day of the accident.
¶7The unexplained accident alleged to have been caused by the negligence of the defendants, neither of whom was present on that day, and had not been since some time in February, remains unexplained.
¶8All the cases cited by the majority opinion on the subject of inference of negligence are distinguishable in that in each of those cases the defendant against whom the inference was drawn was either present or close by when the negligent act occurred, or the lapse of time was brief; — nothing like the lapse of twelve to thirty-nine days.
¶9I do not believe there are any established facts permitting of proof by rational inference of the defendant’s negligence as a proximate cause.
¶10The plaintiff in this action has the affirmative burden of showing that the negligence of the defendant or his servant caused her injury, and such showing cannot be left to surmise or conjecture, but there must be something amounting to proof either by direct evidence or by rational inference from established facts. Felch v. D’Amico, 326 Mass. 196; Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234-235.
¶11I believe the plaintiff has not sustained her burden of proof by removing the case from the field of speculation and conjecture, and that it was error to deny the defendant’s *144requests for rulings of law numbered one to four inclusive. Frazel v. Boston Edison Co., 344 Mass. 759.