By the Court, Hogeboom, J.
The evidence of negligence on the part of the defendant was clear and decisive. The casualty was the direct and immediate consequence of the [268]*268explosion, and this was caused by the negligent act of the defendants agent in lighting a match in the midst of a large quantity of inflammable and explosive gas. The defendant’s negligence is established by this fact, whether Smith was wholly or only in part the defendant’s agent.
But I see no reason to doubt the correctness of the judge’s holding that Smith was exclusively the defendant’s agent. He was in the defendant’s employ, and sent by itcertainly not by the plaintiff or her father—to do an act which it was the defendant’s interest, duty and custom to perform. There was no request to perform this act, on the part of the plaintiff or her father, and nothing done by him, which would give a legal claim to compensation from them.
I think, also, there was ho such negligence on the part of the plaintiff established Us would have justified the court in nonsuiting her, or in taking the case from the jury adversely to her.
Whether there was negligence at all, either by the plaintiff or her father, is not clear from the evidence) at least not so Clear as to entitle the court to nonsuit. The pipe in which the leak or fracture was discovered seems to have been originally put up with care; and to have passed inspection at the hands of the defendant’s agent j and so far as the evidence shows, ilot before to have betrayed any flaws or defects. There is no decisive evidence to show—and it is a difficult question to solve—how the fradttire was produced. It may perhaps have been by an accumulation of coal upon the pipe; it may have been by some'suddeñ jar or blow, which Was the result of accident, and against which ordinary prudence could not provide. Ih such a state of the evidence it was a question for the jury, and we Must assume it was presented to them under proper instructions from the court.
Again. Whether, if there was negligence in this respect, it was of that direct and proximate character which may be. said to have contributed to the catastrophe, is not to my mind entirely clear. 1 Assuming that the house belonged to [269]*269and was in the possession of the plaintiff and her father, perhaps they would have a right, as incident to that property and that possession, to have gas in their cellar, if it were not dangerous to other persons. Perhaps we ought pot to presume that fire or light would he permitted to come in contact with it, especially by persons aware of the presence of the gas and the danger of its contact with fire, Many an article of an inflammable or explosive character is permitted to be kept in inhabited dwellings, by law. The danger arises from some other material being brought in proximity to or contact with them. It is hence a question of some difficulty whether the act of permitting the gas to escape, which in itself was not the cause of the explosion, can be said to have contributed to it in any such direct or proximate manner as to justify the imputation of such negligence as should defeat a recovery for damages consequent upon the explosion. (Bernhardt v. Saratoga R. R. Co., 23 How. 166. Cook v. Champlain Trans. Co., 1 Denio, 91. Castle v. Durea, 32 Barb. 480. Barton v. City of Syracuse, 37 id. 292. Moore v. Goedel, 7 Bosw. 591. Ryan v. Fowler, 24 N. Y. Rep. 410. Carroll v. N. Y. and N. H. R. R. Co., 1 Duer, 571. Colegrove v. N. Y. and Harlem R. R. Co., 6 id. 382. Clark v. Eighth Av. R. R. Co., 32 Barb. 657. Owen v. Hud. Riv. R. R. Co., 7 Bosw, 329.)
I have another difficulty on the question of the plaintiff's negligence. The plaintiff herself was not negligent. She was lawfully and properly, and not negligently in the room where the accident occurred, and she did nothing in any way to produce it. The only way in which she can be held liable for negligence, is by imputing to her the negligence of her father. If she had been an adult, there would have been no ground for charging her with personal negligence. Is she more chargeable because she was an infant of tender years P In my opinion she is not. There are cases, undoubtedly, which hold an infant who brings an action for damages resulting from negligence responsible for his own negligence, [270]*270in the same manner as if he were an adult, upon the ground that infancy must be employed as a shield, and not as a sword, and upon the ground that the negligence of the parent or guardian which allows the infant to be placed in circumstances where his or her negligent conduct exposes him to injury, must be imputed to him when he comes to make a claim founded upon or accompanied by an act of negligence. (Hartfield v. Roper, 21 Wend. 615. Munger v. Tonawanda R. R. Co., 4 N. Y. Rep. 349. Willetts v. Buffalo and Rochester R. R. Co., 14 Barb. 385.) But I know of no just or legal principle which, when the infant himself is free from negligence, imputes to him the negligence of the parent, when, if he were an adult, he would escape it. This would be, I think, ££visiting the sins of the fathers upon the children” to an extent not contemplated in the decalogue, or in the more imperfect digests of human law.
Perhaps the liability may be claimed to attach upon another principle, to wit, that a person, is liable for the negligence of another person, in whose company, charge or control he may happen to be. But this position, though sustained by respectable authority, is not, I think, in accordanee with the weight of authority in this state. In Brown v. N. Y. Central R. R. Co., (31 Barb. 385,) it was held that when the plaintiff while traveling in a stage coach, received an injury from the defendant’s cars in crossing the track, the negligence of the stage coach driver was chargeable to the plaintiff, and must be regarded, for all the purposes of an action, against the defendants for the injury, as the negligence of the plaintiff. The contrary was held at the circuit in the reported case of Knapp v. Dagg, (18 How. Pr. 165;) also in the Superior Court of New York, in the case of Colegrove v. N. Y. and Harlem R. R. Co., (6 Duer, 382,) and in the Court of Appeals, in the case of Chapman v. New Haven R. R. Co., (19 N. Y. Rep. 341.) In the last case it was held that a passenger by railroad is not so identified with the proprietors of- the train conveying him, or their servants,
[271]*271as. to "be responsible for negligence on their part. He may, therefore, recover against the proprietors of another train for damages from a collision through, their negligence, though there was such negligence ip the management of the train conveying him as would have defeated an action by its owners. See further as to the extent and limitations of the rule, the following cases; Hartfield v. Roper, (21 Wend. 615;) Munger v. Tonawanda R. R. Co., (4 Comst. 349;) Willetts v. Buf. and Roch. R. R. Co., (14 Barb. 385;) Mangam v. Brooklyn City R. R. Co., (36 id. 230.)
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By the Court, Hogeboom, J.
The evidence of negligence on the part of the defendant was clear and decisive. The casualty was the direct and immediate consequence of the [268]*268explosion, and this was caused by the negligent act of the defendants agent in lighting a match in the midst of a large quantity of inflammable and explosive gas. The defendant’s negligence is established by this fact, whether Smith was wholly or only in part the defendant’s agent.
But I see no reason to doubt the correctness of the judge’s holding that Smith was exclusively the defendant’s agent. He was in the defendant’s employ, and sent by itcertainly not by the plaintiff or her father—to do an act which it was the defendant’s interest, duty and custom to perform. There was no request to perform this act, on the part of the plaintiff or her father, and nothing done by him, which would give a legal claim to compensation from them.
I think, also, there was ho such negligence on the part of the plaintiff established Us would have justified the court in nonsuiting her, or in taking the case from the jury adversely to her.
Whether there was negligence at all, either by the plaintiff or her father, is not clear from the evidence) at least not so Clear as to entitle the court to nonsuit. The pipe in which the leak or fracture was discovered seems to have been originally put up with care; and to have passed inspection at the hands of the defendant’s agent j and so far as the evidence shows, ilot before to have betrayed any flaws or defects. There is no decisive evidence to show—and it is a difficult question to solve—how the fradttire was produced. It may perhaps have been by an accumulation of coal upon the pipe; it may have been by some'suddeñ jar or blow, which Was the result of accident, and against which ordinary prudence could not provide. Ih such a state of the evidence it was a question for the jury, and we Must assume it was presented to them under proper instructions from the court.
Again. Whether, if there was negligence in this respect, it was of that direct and proximate character which may be. said to have contributed to the catastrophe, is not to my mind entirely clear. 1 Assuming that the house belonged to [269]*269and was in the possession of the plaintiff and her father, perhaps they would have a right, as incident to that property and that possession, to have gas in their cellar, if it were not dangerous to other persons. Perhaps we ought pot to presume that fire or light would he permitted to come in contact with it, especially by persons aware of the presence of the gas and the danger of its contact with fire, Many an article of an inflammable or explosive character is permitted to be kept in inhabited dwellings, by law. The danger arises from some other material being brought in proximity to or contact with them. It is hence a question of some difficulty whether the act of permitting the gas to escape, which in itself was not the cause of the explosion, can be said to have contributed to it in any such direct or proximate manner as to justify the imputation of such negligence as should defeat a recovery for damages consequent upon the explosion. (Bernhardt v. Saratoga R. R. Co., 23 How. 166. Cook v. Champlain Trans. Co., 1 Denio, 91. Castle v. Durea, 32 Barb. 480. Barton v. City of Syracuse, 37 id. 292. Moore v. Goedel, 7 Bosw. 591. Ryan v. Fowler, 24 N. Y. Rep. 410. Carroll v. N. Y. and N. H. R. R. Co., 1 Duer, 571. Colegrove v. N. Y. and Harlem R. R. Co., 6 id. 382. Clark v. Eighth Av. R. R. Co., 32 Barb. 657. Owen v. Hud. Riv. R. R. Co., 7 Bosw, 329.)
I have another difficulty on the question of the plaintiff's negligence. The plaintiff herself was not negligent. She was lawfully and properly, and not negligently in the room where the accident occurred, and she did nothing in any way to produce it. The only way in which she can be held liable for negligence, is by imputing to her the negligence of her father. If she had been an adult, there would have been no ground for charging her with personal negligence. Is she more chargeable because she was an infant of tender years P In my opinion she is not. There are cases, undoubtedly, which hold an infant who brings an action for damages resulting from negligence responsible for his own negligence, [270]*270in the same manner as if he were an adult, upon the ground that infancy must be employed as a shield, and not as a sword, and upon the ground that the negligence of the parent or guardian which allows the infant to be placed in circumstances where his or her negligent conduct exposes him to injury, must be imputed to him when he comes to make a claim founded upon or accompanied by an act of negligence. (Hartfield v. Roper, 21 Wend. 615. Munger v. Tonawanda R. R. Co., 4 N. Y. Rep. 349. Willetts v. Buffalo and Rochester R. R. Co., 14 Barb. 385.) But I know of no just or legal principle which, when the infant himself is free from negligence, imputes to him the negligence of the parent, when, if he were an adult, he would escape it. This would be, I think, ££visiting the sins of the fathers upon the children” to an extent not contemplated in the decalogue, or in the more imperfect digests of human law.
Perhaps the liability may be claimed to attach upon another principle, to wit, that a person, is liable for the negligence of another person, in whose company, charge or control he may happen to be. But this position, though sustained by respectable authority, is not, I think, in accordanee with the weight of authority in this state. In Brown v. N. Y. Central R. R. Co., (31 Barb. 385,) it was held that when the plaintiff while traveling in a stage coach, received an injury from the defendant’s cars in crossing the track, the negligence of the stage coach driver was chargeable to the plaintiff, and must be regarded, for all the purposes of an action, against the defendants for the injury, as the negligence of the plaintiff. The contrary was held at the circuit in the reported case of Knapp v. Dagg, (18 How. Pr. 165;) also in the Superior Court of New York, in the case of Colegrove v. N. Y. and Harlem R. R. Co., (6 Duer, 382,) and in the Court of Appeals, in the case of Chapman v. New Haven R. R. Co., (19 N. Y. Rep. 341.) In the last case it was held that a passenger by railroad is not so identified with the proprietors of- the train conveying him, or their servants,
[271]*271as. to "be responsible for negligence on their part. He may, therefore, recover against the proprietors of another train for damages from a collision through, their negligence, though there was such negligence ip the management of the train conveying him as would have defeated an action by its owners. See further as to the extent and limitations of the rule, the following cases; Hartfield v. Roper, (21 Wend. 615;) Munger v. Tonawanda R. R. Co., (4 Comst. 349;) Willetts v. Buf. and Roch. R. R. Co., (14 Barb. 385;) Mangam v. Brooklyn City R. R. Co., (36 id. 230.)
The principle of the rule thus established is, that before a party can be liable for negligence, he must himself personally pr by his agents, have been guilty of it; that he ought not to be chargeable for the negligence of another, over whose movements he has no control or rightful authority, and whose negligence he had no reason to anticipate; apd that though this doctrine may in some cas.es expose a defendant to an action where, if the action were brought by another party for damages resulting from the same casualty, he would not be liable, yet it works no injustice, as it never allows a party to recover unless his adversary has been guilty of negligence, and he himself is free from it,
The other questions may be disposed of more briefly.
The request to charge that if the leak was in the bend put in by the gas fitter, the defendant was not responsible for any thing done by Smith in regard to its repair, was properly overruled: 1st. Because Smith did nothing towards the repair of the pipe. 2d. Because, as we have held Smith to have been the defendant’s agent and the act done was in the line of his agency, the defendant would have been responsible for his acts.
The same reasons show the next request to have been improper, to wit, the request to charge that the defendant was not liable for Smith’s negligence if the leak was in the brass bend, and not in the service pipe. Smith’s duties extended to such examination as was necessary to determine the [272]*272locality of the leak wherever it was, and the catastrophe originated in the improper method resorted to for the pur pose of pursuing such examination.
[Albany General Term,
December 4, 1865.
I think all the other exceptions are covered by what has been already said. The motion for a new trial must be denied, and the plaintiff must have judgment on the verdict.
Judgment for the plaintiff,
Bogeboom, MiUcr ap.d Ingalls, Justices.]