Dissenting Opinion by
Mr. Justice Jones:Tbe majority opinion unfortunately extends tbe rule of Valles v. Peoples-Pittsburgh Trust Company, 339 Pa. 33, 13 A. 2d 19, to a set of circumstances to wbicb it is neither reasonably nor logically applicable. Tbe two cases are plainly distinguishable on their facts.
In tbe Valles case, the instrumentality which tbe plaintiffs alleged was negligent consisted of refrigeration coils and pipes containing ammonia, along a basement wall in tbe defendant’s building; tbe installation was essential to the service and proper at tbe place .of its location; tbe presence of tbe pipes and coils was readily observable; and tbe ammonia content, wbicb, if released to tbe air, would likely prove dangerous, was securely contained within tbe confining coils and pipes. It was only because a stub of a pipe extending out from one of tbe pipes along tbe wall was broken off during tbe loosening and removal of bricks from tbe wall by a workman of an independent contractor that tbe ammonia was released and caused tbe injury of one of tbe workmen and the death of another. Tbe duty of reasonable care owed by tbe property owner to the employees of tbe independent contractor (Nettis v. General Tire Company of Philadelphia, Inc., 317 Pa. 204, 209, 177 A. 39) was fully met in tbe Valles case, as a matter of law, when tbe property owner gave to tbe workmen’s employer notice of tbe potential danger from interference with tbe coils and pipes. In short, tbe own*421er of the premises had done all that could reasonably he expected of him to safeguard the workmen against injury from the confined ammonia.
In the instant case, the lack of a vent for the gas water heater in a closet of a room on the second floor of Beider’s commercial building, to which business visitors were invited, was neither a proper nor an essential type of installation; in its operation, the unvented heater was bound to give off deadly carbon monoxide gas which carries no warning to the senses of its presence; Beider had had specific warning from a well-qualified person of his own choosing a year before the accident that, unless he vented the heater, he was “going to kill everybody in the building”; and he had said then that he would have the highly dangerous condition corrected, which he never did. That he was fully cognizant of the imminent peril which he thus continued to maintain is further confirmed by his own averments in his complaint against Engle’s employer, one Boutman, whom he brought upon the record as an additional defendant. There he averred that “. . . the fumes produced by the heater were not let away by any vent, but were allowed to escape through a hole in the ceiling of the closet into the area between the ceiling of the second floor and the roof of the said building. . . . Hot water heaters, such as the one installed by the defendant [himself,] . . . produce in their operation in varying quantities, an odorless, colorless, and tasteless gas known as carbon monoxide. This gas is harmful to human beings and if inhaled in sufficient quantities, will produce death.” Beider’s effort was not in denial of his own willful negligence but to implicate Boutman who, he averred, acting by a representative, had directed his employee Engle “to climb up through the closet, over the hot water tank, into the area between the ceiling and the roof, and there make an electrical connection to a service wire in that area”; and that, in the *422performance of that duty Engle had been overcome and died, his death being “caused by carbon monoxide which had been produced by the hot water heater in the closet.” These quotations are Beider’s own averments. Yet, he knowingly persisted in maintaining in his building a veritable lethal chamber which caused exactly what he must have known it was certain at some time to cause, namely, the death of a human being.
The reason why the jury gave a verdict for Beider is not hard to discover. The trial judge, on the ascribed, but nonetheless misunderstood authority of the Valles case, peremptorily instructed the jury that, if Beider gave Boutman, Engle’s employer, advance warning of the danger of the unvented heater or that, even if Beider did not so warn Boutman, the latter otherwise knew of the danger, then the jury should find a verdict for Beider. That instruction was an end of the case so far as Beider was concerned; it was tantamount to a directed verdict in the circumstances; Boutman had freely admitted that he knew the “unvented heater” was dangerous. The instruction gave Beider far more than he was entitled to under the evidence Avhich warranted a jury’s finding that his actions in the premises constituted reckless and wanton negligence, nothing less. And, just as contributory negligence is no defense to an action for another’s reckless and wanton misconduct (see Kasanovich v. George, 348 Pa. 199, 202-204, 34 A. 2d 523; Misorski v. Pennsylvania Railroad Company, 348 Pa. 204, 206, 34 A. 2d 526; and Re-statement, Torts, §482), by like token, one does not exculpate himself from liability for his reckless and wanton negligence by warning another of it. If Beider’s direct warning of his patently culpable wrongdoing would have been incapable of barring Engle as a matter of law, by what logic could a vicarious warning bar the deceased’s personal representative? Whether Engle himself was reckless was at most a question of fact for *423the jury; any finding to such effect could be rested on no more than the testimony of a self-impeached witness whom the jury presumably did not believe, as will hereinafter appear. Nothing less, therefore, than a new trial can adequately eradicate the basic and fundamental error of the trial court’s charge.
In addition to the foregoing, the learned trial judge submitted to the jury one leading and some partisanly diverting interrogatories for special findings. In objecting to the submission of these special questions, plaintiff’s counsel aptly commented that they were “. . . more calculated to confuse than to define.” The interrogatory, first above referred to, assumed facts on the basis whereof the jury was compelled to answer that Engle had been negligent; but, even on such a fallaciously posed assumption, the most the jury was willing to answer was “Yes (partially).” In view of the fact that the evidence warranted a finding that Reider’s conduct amounted to reckless and wanton negligence, contributory negligence on Engle’s part was, of course, not an available defense to Reider (Kasanovich v. George, supra). Furthermore, Engle was dead and his representative, as plaintiff, was entitled, in the attending circumstances, to a presumption that he had exercised due care for his own safety. The jury could not have meant any more by its answer to the leading interrogatory than that Engle was negligent on the basis of the facts which the interrogatory assumed. Yet, there is not the slightest indication in the record that the jury found the facts so to be. On the contrary, if the jury had meant to indicate that they had found Engle guilty of negligence, how then did they come to find, by their general verdict, in favor of the plaintiff and against the additional defendant (Rout-man) in a substantial amount? Nor can it be of any present significance that Routman, the additional defendant, was later eliminated from the case by a judg*424ment n.o.v. As Engle’s employer, be was liable for workmen’s compensation and, automatically, was relieved of bis common law liability for negligence, but that does not affect tbe inconsistency of tbe jury’s verdict as to tbe Beiders wbicb was no doubt due to wbat tbe trial judge erroneously instructed with respect to tbe ruling in tbe Valles case.
A careful study of the record in this case impels me to conclude that only by a new trial can tbe issues be fairly and justly tried and determined. I would, therefore, reverse with a v.f.d.n.