On Petition for Re-Hearing
Hunter, J.— For a complete statment of the facts involved,
see the original opinion in 218 N. E. 2d 556 (1966). The question presented on this appeal is whether the appellant’s complaint stated a cause of action sufficient to withstand a demurrer. The lower court sustained the appellee’s demurrer, after which the appellant refused to plead over. The appellant then filed a motion for new trial which was overruled. Subsequently the appellant brought this appeal assigning the ruling on the motion for new trial as error.
The main question presented by this appeal is whether under the laws of negligence the appellee in the exercise of due care was bound to odorize the gas which it distributed and if so, was the failure to odorize the gas the proximate cause of injury to the appellant.
The appellant alleged that the appellee was bound to odorize the gas which it produced and distributed as the standard of reasonable care requires that:
(1) “it is both in keeping with due care in the sale of the defendant’s gas products,” and such practice
(2) “was and is the custom of the defendant, well established by its long practice and community wide usage
In the original opinion, it was stated we did not find it necessary to pass on the question presented by the first allegation, to-wit: whether or not the law recognizes that a reasonable and prudent distributor of natural gas should odorize *423the gas it distributes in the exercise of due care regardless of past or present conduct. We stated that it was sufficient that appellant alleged it was “the custom and usage of the defendant, well established by its long practice and community wide usage. . . .” We held on the basis of William Laurie Co. v. McCullough (1910), 174 Ind. 477, 90 N. E. 1014, 92 N. E. 337, that the appellant alleged a long established practice of the appellee to be relevant in defining whether in the exercise of reasonable care the appellee was bound to odorize its gas. We stated that this would be sufficient to establish the fact that the appellee should have odorized its gas.
We are now of the opinion that the authorities cited therein are inapplicable for the reason that the appellant did not allege that it was the custom and practice of the industry to odorize the gas; rather the appellant alleged that it was the custom and practice of the appellee to odorize the gas. Therefore, William Laurie Co. v. McCullough, supra, is not pertinent to the case at bar under such an allegation, for said case pertains to custom and usage of an industry, etc.
However, this does not change the result of this case. The second allegation relating to the custom of the appellee to odorize its gas remains valid. Assuming the law does not recognize that a gas company is bound to odorize its gas in keeping with the duty of reasonable care in the distribution of natural gas, the appellee may still be liable under the principles of affirmative conduct. Even though the appellee was not bound to odorize its gas in the first instance, once it developed the practice of odorizing the gas, it became liable for negligence in such action.
The facts at bar are analogous to the situation where a railroad maintains a flagman or warning signal at a crossing even though it is not bound by law or statute. However, once it has built up a reliance on the part of others, a failure to give warning of the discontinuance of the practice or a failure to maintain the practice as to a particu*424lar instance will result in negligence. Greenfield v. Terminal R. Ass’n of St. Louis, (1937), 289 Ill. App. 147, 6 N. E. 2d 888 and cases cited. See also Nelson v. Union Wire Rope Corporation (1964), 31 Ill. 2d 69, 199 N. E. 2d 769, dealing with the situation of duties arising from a gratuitous act, and Prosser, Law of Torts, ch. 10, p. 342 (1964 Ed.).
Consequently, in the facts at bar even though the appellee may have been under no duty originally to odorize its gas, after it started such a practice, it was bound to use reasonable care. Whether the failure to warn others of discontinuing the practice, or merely failing in the practice at the particular time in question was a negligent act is a question of fact for the jury or the court in a trial on the merits.
Furthermore, we are now of the opinion that the appellee was bound in the exercise of due care to odorize the natural gas which it distributed. The court has previously stated:
“Courts take judicial knowledge of the fact that natural gas is a highly inflammable and explosive substance.” Public Service Co. of Ind. v. Dalbey (1949), 119 Ind. App. 405, 415, 85 N. E. 2d 368.
In view of the dangerous propensities of natural gas and its odorless state, it would seem that these facts present a compelling basis for the principle that distributors of natural gas should be bound to odorize such gas in order to give a warning of its presence.
We hold that this practice is encompassed within the duty of distributors to exercise reasonable care in the distribution of natural gas. No previous Indiana eases have so held, neither have any held to the contrary. However, other jurisdictions support this holding. See City of Villa Rica v. Couch, 281 F. 2d 284 (5th C. C. A. 1960) ; Winkler v. Macon Gas Co. (1951), 361 Mo. 1017, 238 S. W. 2d 386, dealing with propane gas; Doxstater v. Northwest Cities Gas Co. (1944), 65 Idaho 814, 154 P. 2d 498, dealing with butane gas.
*425In view of this holding, the allegation of custom and usage is unnecessary. In alleging that the appellee was bound to odorize the natural gas in exercising due care, the complaint stated facts sufficient to constitute a cause of action and the demurrer should have been overruled.
We make no changes in that part of the original opinion dealing with the issue of intervening or concurring acts of negligence other than to refer to the recent authority of our Supreme Court in Elder v. Fisher (1966), 247 Ind. 598, 217 N. E. 2d 847 in further support of our position.
Petition for re-hearing denied.
Wickens, C. J., and Faulconer, J., not participating.
Mote, P. J., dissents with statement.
Bierly, Carson, Prime and Smith, JJ., concur.