in not having sufficiently closed the fixtures.158 But a landlord is not liable to an employee of his tenant for an injury resulting from an explosion of gas, caused by defective plumbing done by a former tenant of the building, who employed a competent plumber to do the work, in which the defects were not apparent and of which such landlord had no actual knowledge.159 $647. Owner of premises liable to injured person. The owner of the premises may himself be so guilty of negligence as to be liable to any one rightfully upon them who is injured by an explosion. Thus if gas be escaping in a dangerous quantity, and he knowing of the escaping gas and the extent of it, invite another on the premises, and does not warn him, and an explosion occurs whereby the person so invited is injured, such owner will be liable if he negligently caused the explosion. Where a servant of a water company went upon certain premises, in discharging his duty, to ascertain from a water meter the amount of water used by the owner of the premises, and was killed by an explosion of gas that had escaped, the owner of such premises was held liable; for the person killed was rightfully on the premises, being more than a licensee, under an implied invitation of the owner. The mere fact that the deceased smelled gas was considered not to be such contributory negligence on his part as should necessarily defeat him; for he was acting under the stress of a duty.1 158 Kimmel v. Burfeind, 2 Daly 155. The question of the plaintiff's due care was not considered. Where the tenant has sued the gas company for an injury to his leasehold, and failed to recover judg ment upon the merits of the case, such judgment is not a bar to the landlord recovering for an injury to his reversionary interest, the ac 160 tion not being between the same parties nor their privies. Bartlett v. Boston Gaslight Co., 122 Mass. 209. 159 Metzger v. Shultz, 16 Ind. App. 454; 43 N. E. Rep. 886, rehearing denied, 45 N. E. Rep. 619. 160 Finegan v. Fall River Gas Works, 159 Mass. 311; 34 N. E. Rep. 523. $648. Plaintiff must show due care on his part.- Contributory negligence. 161 162 The burden rests upon the plaintiff to show that he was acting with due care and with ordinary prudence when the accident occurred; or in other words, his act did not contribute to the injury. Ordinary care is all that is required of him; but, of course, what is ordinary care will depend upon the amount of danger and the extent of the plaintiff's knowledge of the danger. One has no right to expose himself to the mischievous effect of gas, and if injured, hold the gas company liable; and the burden rests upon him to show that he did not do so.' If the plaintiff, by the exercise of diligence, could have prevented the injury, he cannot recover; and if the injury was a continuing one, and the company could have stopped the continuation of the loss if it had been notified of it, he cannot recover for any loss sustained after it became his duty to notify the company of such continuation, his act being considered as contributing to the loss sustained after the duty of informing the company has been imposed upon him.163 Where the plaintiff's house was supplied with gas, but another company had a gas main ninety feet away from which gas escaped, which passing under the ground entered her cellar, and there exploded; and although plaintiff supposed the gas she detected was from the company's pipes that supplied her with gas, though she knew of the gas leak in the other company's main, yet it was held that she was not guilty of such contributory negligence as would defeat a recovery.16* 161 Holly v. Boston Gaslight Co., 8 Gray 123; 69 Am. Dec. 233; Lee v. Troy Citizens' Gaslight Co., 98 N. Y. 115; Bartlett v. Boston Gaslight Co., 117 Mass. 533; 19 Am. Rep. 421; Schmeer v. Gaslight Co., 147 N. Y. 529; 42 N. E. Rep. 202; 30 L. R. A. 653; German American Ins. Co. v. Standard Gaslight Co., 67 N. Y. App. Div. 539; 73 N. E. Supp. 973. That is, where some statute does not change the rule as to the burden of showing contributory negligence. 162 Holly v. Boston Gaslight Co., supra. 163 Hunt v. Lowell Gaslight Co., 1 Allen 343. 164 Consumers' Gas Co. v. Perrego, 144 Ind. 350; 43 N. E. Rep. 306; 32 L. R. A. 146. Where gas was leaking into the plaintiff's cellar from a gas pipe. and the company's superintendent "The leak was across the street from appellee," said the court. "She did not receive her gas from the appellant. It is hard, therefore, to understand how she should have thought that the leak at appellant's sleeve, ninety feet distant, even if she knew its existence, which does not appear from the evidence, could have been the source of any danger to her." Where the suit was to recover for injuries incurred from escaping gas, the plaintiff, to establish due care on his part, it was held could not prove that the gas company's agent advised the occupants of a neighboring house, into which the gas had escaped from the same leak, what to do to avoid the ill consequences from it, and that he did the same things thus advised, if such agents gave him directions respecting the matter. 165 $649. Owner removing from his premises. The circumstances may be such as to require the owner or occupants of a house to vacate it in order to avoid injury to himself; and if he do not he will be guilty of such contributory negligence as will bar a recovery. Thus where the plaintiff's health was injured by inhaling gas escaping from a defective main in the street and entering his dwelling house, it was held to be a want of due care on his part to remain in the house, after he had a reasonable opportunity to procure another house or place of residence and to remove thither; and that the gas company could not properly be held liable in damages for consequences which ensued after such removal might have been made. 166 So where the plaintiff was a minor living with his father, and was injured by inhaling gas at night, which had escaped from a street main during the day previous, and of which the gas company was not notified until the afternoon, it came to locate the leak, and plaintiff went into the cellar at his request, but remained no longer than was necessary to point out the place of the supposed leak, and, without warning her, the superintendent lighted a match, causing an explosion, it was held that the plaintiff was not guilty of negligence contributing to the explosion. Tipton Light, etc., Co. v. Newcomer (Ind. App.), 67 N. E. Rep. 548. 165 Emerson v. Lowell Gaslight Co., 3 Allen 410. 166 Hunt v. Lowell Gaslight Co., 1 Allen 343. 167 was held that the plaintiff could not maintain, his action if his father failed to adopt suitable precaution against the hurtful effect of the gas after it was discovered to be filling the house; and that it was for the jury to decide whether there was not a manifest want of prudence in remaining in the house after it became known to the inmates that it was being filled with gas,1 Where a strong smell of gas prevailed throughout the dwelling house, and the gas company sent its servant to repair the leak, who, after professing that he had made the necessary repairs, informed the family that all was safe, and assured them that the odor of gas came from a gas post in the street, it was held not negligence on their part for the members of the family to remain in the house after receiving such assurance.168 Of course, the rule is not so stringent as to require the occupant to leave the house as soon as he smells the escaping gas, for the odor may be slight, although unusual. But even though the amount be small, yet it may so accumulate as to render it dangerous, either by reason of an injury inflicted upon him by an explosion or to his health, to remain in the house; or the gas may escape in such volume as to require immediate action on his part. But he is not bound to remove before making a timely effort to stop the flow of escaping gas or to have the gas company stop it; unless it is clear, or there is a strong presumption, that it would be dangerous to remain longer in the house.169 Of course, the removal here discussed is a removal of the person and not of his goods; for he is not bound to risk his health in removing them, and there is not, usually, much likelihood that they will be injured. $650. Duty of property owner to cut off supply of gas. The owner of the property must cut off the gas when discontinuing the supply, where the means of cutting it off is on his 167 Holly v. Boston Gaslight Co., 8 Gray 123; 69 Am. Dec. 233. 168 Richmond Gas Co. v. Baker, 146 Ind. 600; 45 N. E. Rep. 1049; 36 L. R. A. 683. 169 Kibele v. Philadelphia, 105 Pa. St. 41. own premises, or at least within his buildings; and the gas company is under no duty to enter the building and cut off the gas in order that explosions may be prevented. Thus where the stop-cock was within the house, situated between the inner wall and the meter; and the last tenant, on removing, gave the usual notice that he did not require any further supply; and one of the gas company's workingmen, at the tenant's request, removed the chandelier from one of the rooms, leaving the end of the pipe properly secured, the internal fittings being the property of the owner of the house; and while the house remained untenanted, the gas by some unexplained means escaped, an explosion occurred, and the house was injured; it was held that the company could not be held liable on the theory that it was its duty to cut off the supply of gas, but the property owner was guilty of contributory negligence for not having turned the stop-cock so as to shut off the flow of gas. In another instance where the consumer was informed that the employee who had turned on the gas was not authorized to do so, that it was the duty of another employee to turn it on, that there was a leak in the regulators, and that it could not attend to the leak before the next morning, it was held that the failure of the consumer to turn off the gas on receiving this information of the defect was such negligence as precluded a recovery.' 8651. Searching for leaks with a light. 170 171 Courts will not say as a matter of law that it is contributory negligence to search for leaking gas with a lighted candle or by the use of matches. It is not negligence per se to thus search for escaping gas.172 Nor is taking a lighted lamp into a cellar filled with gas an act of contributory negligence, as a matter of law, which will preclude a recovery for injuries occurring ten 170 Holden v. Liverpool Gas Co., 3 C. B. 1; 15 L. J. C. P. 301; 10 Jur. 883. 171 Kohler Brick Co. v. N. W. Ohio, etc., Gas Co., 11 Ohio Cir. Ct. 319; 5 Ohio Cir Dec. 379. 172 Pine Bluff, etc., Co. v. Schneider, 62 Ark. 109; 34 S. W. Rep. 547; 33 L. R. A. 366; People's Gaslight and Coke Co. v. Amphlett, 93 Ill. App. 194. |