[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 31 This case comes before us upon an appeal by the defendant from an order of the New York Common Pleas reversing the judgment of a referee and granting a new trial for errors of law only. The order granting the new trial not stating that the judgment was reversed upon the facts as well as the law, we have no jurisdiction to review the report of facts by the referee, if there was any evidence to support them. His findings are, in such case, conclusive upon an appeal to this court. (Code, § 268.)
The referee reported adversely to the plaintiff, upon the sole ground that by his own careless and negligent acts he contributed to the injury of which he now complains, and this report was made upon the evidence on the part of the plaintiff, and without any evidence on the part of the defense. There was no conflict of evidence, except a slight discrepancy *Page 33 between the testimony of the plaintiff and his clerk, Phillips, as to the time within which the cellar had been last entered with a light, before the explosion causing the damages, the latter stating that but two or three days had elapsed, and that they had occasion to visit the cellar to draw liquid gas from a barrel they kept there for use, two or three times a week, while the former thought that the cellar had not been opened for five days, and that he had never had but one barrel of gas or illuminating oil — he purchasing it at other times in smaller quantities. The referee gave credit to the plaintiff rather than to Phillips, and found that the cellar had not been opened for five days; and this he was at liberty to do, although whether the time was three or five days, is not very material in passing upon the question whether there was any evidence upon which negligence could be attributed to plaintiff.
Upon the evidence unexplained and uncontradicted there can be no doubt that the defendant was guilty of an omission of duty in neglecting effectually to cap and close the service pipe upon the plaintiff's premises, so as effectually to exclude the gas from his cellar and store, and that it would be liable for any damages caused solely by such neglect. (Lannen v. Albany Gas-LightCo., 44 N.Y., 459; Holden v. Liverpool Gas Co., 3 C.B., 1.) But if the negligence and want of care of the party sustaining damage has contributed to the injury, no action will lie against the defendant.
The proximate cause of the explosion was the introduction of a light into the cellar by the servants of the plaintiff acting under his immediate directions.
The properties of the illuminating gas in ordinary use, its inflammable and explosive character, are well understood, and every person of mature years and ordinary intelligence, cannot be presumed to be ignorant of them. The plaintiff had been, for a long time, aware that the gas had escaped, and was escaping into his cellar, and finding its way into other parts of the building, and must be presumed to have known that it would necessarily accumulate in larger quantities, and *Page 34 in a more condensed form in the cellar, but seldom opened, and but for short periods of time. He must be held to have known the danger of bringing a burning lamp, or a lighted match, in contact with this free gas, and to be responsible for a disregard of the peril. If he heedlessly or recklessly exposed himself or his property to the danger, he must abide by the consequences. The maxim, volenti non fit injuria applies, in all its force, to one who heedlessly and voluntarily exposes his person or property to apparent danger or peril.
The question was whether, under all the circumstances, the action of the plaintiff was that of a man of ordinary prudence and discretion; and if they were not, and the injury resulted from such action, he had no claim upon the defendant. We cannot say that there was no evidence, and nothing in the circumstances, as proved by the plaintiff, to authorize the deduction of the referee, that the plaintiff was guilty of negligence. It is not necessary to an affirmance of his judgment, that we should have come to the same conclusion upon the same evidence. It is enough that the judgment is not without the evidence to sustain it. InHolden v. Liverpool Gas Co. (supra), the plaintiff was non-suited at Nisi Prius, and the nonsuit sustained in Banc, under these circumstances. The plaintiff was the owner of a house occupied by tenants, who had been supplied with gas by the defendant. Upon the removal of the last tenant, the company had been notified to cut off the gas and close the service pipe, and had removed a lamp for the tenant, and capped the pipe supplying the lamp, and shut off the gas by a stop-cock inside the house. The premises were left unoccupied. A few days after the tenant left the premises, there was an explosion of gas occasioning considerable damage. Evidence was given tending to prove that the supply of gas should have been intercepted by a stop-cock outside the premises. It appeared that the gas had been turned on, and the supply pipes torn and cut from the metre, and carried away; but how this had occurred was not shown. It was *Page 35 held that the injury to the plaintiff was not solely imputable to the want of due care on the part of the defendant; but that the plaintiff had, by his own voluntary act, contributed to it; that he was himself wanting in the ordinary care of seeing that the stop-cock in the inside was closed. The plaintiff here knew that the escape was from the supply pipe on his own premises, and although it was the duty of the defendant to prevent the escape, the plaintiff might have done it; and knowing the escape of gas, and that he had occasion to visit the cellar with lights, it was a voluntary and negligent exposure of his property to danger, not to see that the escape of gas was properly prevented. That he had frequently before exposed himself and property to the same risk and escaped with impunity, does not exempt him from the consequences of his carelessness when damage has ensued. He cannot set up his own prior acts to justify his negligence on this occasion. The former experiments of the plaintiff did not tend to prove that it was prudent to take a lighted match or candle into the cellar, when charged with this gas, as the result conclusively shows that it was not safe. Whether his knowledge of the harmlessness of the former acts in going into the cellar with lights should legitimately influence his subsequent action, and make that prudent which, but for such knowledge, would have been imprudent, was for the consideration of the referee, in connection with the other evidence and all the circumstances of the case. It was but one of many circumstances entering into the question of negligence on the part of the plaintiff, and as it does not necessarily and incontrovertibly establish the absolute prudence and propriety of his acts, and that he was not careless or imprudent, the case, as depending on a question of fact, which we cannot review, is not changed. It cannot be said, as a matter of fact, that the plaintiff was not reckless in causing a flame to be brought in contact with the gas, directly causing the explosion and consequent injury; or that there was no evidence for the referee tending to prove negligence on his part. A verdict of a jury upon the *Page 36 same evidence for the defendant, could not be set aside as against evidence. A direction of a verdict for the plaintiff would have been set aside as erroneous.
The order granting a new trial should be reversed, and the judgment on the report of the referee affirmed.
All concur.
Order reversed, and judgment accordingly.