(dissenting). The state of the proof was such that the court should have submitted to the jury the question whether MeClintock was guilty of contributory negligence in remaining under the house after he discovered the presence of gas in the pipe from which he was removing the goose-neck. There was evidence which would have warranted the jury in finding that enough gas escaped while he was unscrewing the pipe to apprise him of the presence of gas before it escaped in sufficient quantity to asphyxiate him and in time to have made his escape. The court gave instructions submitting the question of contributory negligence, but they were in effect withdrawn by the court’s approval of the remarks of counsel. The overruling of defendant’s objection was in effect an approval of the remarks, and was the same as if the court had in express terms withdrawn its former instructions and refused to submit the question of contributory negligence. It is true that the court had directed the jury not to consider the element of pain and suffering, but this was not on the ground that the death was instantaneous after the gas began to escape. It would have been error for the court to have told the jury 'that death was instantaneous as soon as the gas began to escape, for that was a disputed question of fact. The court was correct, however, in withdrawing from the jury the element of pain and suffering, for the undisputed proof showed that death by asphyxiation was painless. This court now holds that the plaintiff was entitled to recover on the theory that the defendant negligently created a deceptive condition which misled MeClintock, by leaving the old pipe exposed and gas in the new pipe. If the court is correct on that question, the error in withdrawing the question of contributory negligence is distinctly emphasized; for if MeClintock was in fact deceived into attempting to unscrew the joint of the pipe which he supposed was an old unused one, the moment that he detected the escape of gas it should have warned him that he was mistaken in supposing that the pipe contained no gas.
As already stated, I think there is abundant proof to have warranted the jury in finding that there was sufficient escape of gas to give him warning in time to make his escape before he entirely removed the pipe so as to allow it to escape in sufficient volume to kill him.
Mr. Justice Wood concurs in what I have thus far said.
In addition to this, I am of the opinion that leaving the old pipe exposed was not the proximate cause of the injury, and that the plaintiff entirely failed to make out a case for the recovery of damages. But, even if the case could be rested upon that theory, it seems clear to me that that issue was not embraced in the pleadings, and was not submitted to the trial jury. The whole record shows that the trial proceeded upon the theory of negligence in failing to install a stop box at the curb. This runs through all the instructions given by the court. It is true that one or two of the instructions mention the fact of the old pipe 'being exposed, but that is mentioned only as one of the conditions existing at the time, and not as an act of negligence for the jury to consider. It is evident to my mind that the jury based its verdict upon the failure of defendant to install a stop box, and it is now conceded that according to the undisputed proof that was not an act of negligence, for the meter cock at the end of the pipe prevented the escape of gas as effectually as a stop box at the curb, and the gas escaped solely on account of McClintock unscrewing the joint.