BLAND, P. J. —
1. Where negligence is alleged a.s a cause of injury, the test of defendant’s liability is that the consequences of the act complained of were such as in the surrounding circumstances of the case might and ought to have been foreseen by the defendant. [193]*193Poeppers v. Railroad, 67 Mo. 715; Stanley v. Railroad, 114 Mo. 606; Railroad v. Hope, 80 Pa. St. 373; Railroad v. Standford, 12 Kan. 354; Doggett v. Railway, 78 N. C. 305; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264.
Generally speaking, one doing a lawful act upon his own premises can not be held for injurious consequences resulting therefrom, unless the act is so done as to constitute negligence, but if he is using a dangerous article, or instrument, in such a manner or in such circumstances that he has reason to know that it is liable to produce injury, he is responsible for the natural and probable consequences of his act to the person injured who is not himself in fault. Carter v. Towne and another, 98 Mass. 567; Dixon v. Bell, 5 Maule & S. 198; Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143; Elkins, Bly & Co. v. McKean, 79 Pa. St. 493. And the degree of care he is required to use depends upon the degree of danger. The duty increases with the degree of danger. Butcher v. Gas Co., 12 R. I. 149; Koelsch v. Philadelphia Co., 18 L. R. A. 759.
As is said in Hutchinson v. Boston Gas Light Co., 122 Mass. 219: “There must be an omission to do something which a reasonable man, acting upon considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which such a man would not do. ’ ’ Or, as expressed in Cobb v. Railroad, 149 Mo. 609: “It is the exigency of the situation, which, acting like heat’s action on the mercury in the thermometer, determines to what degree prudence must rise in order to reach the mark of ordinary care. ’ ’
But the words, “ordinary care,” “due care,” and similar expressions found in the law books, are not susceptible of exact definition applicable to every possible case, for the reason there is no absolute standard by which the conduct of individuals in each particular case can be brought and to which it can be compared [194]*194and tested. Eor want of a more perfect standard the courts have set up that somewhat shadowy personage, “the man of ordinary prudence,” by defining ordinary care as being “such care as ought reasonably to be expected of an ordinarily prudent person in the same situation as the person whose conduct is in question.” Known v. Railroad, 141 Mo. 86.
From these rules flow the further rule that where the facts are in dispute, or are such that reasonable men might fairly differ upon the question whether the conduct in question was negligent or not, the question is for the jury. Huhn v. Railroad, 92 Mo. 440; Lynch v. Railroad, 112 Mo. 420; Gratiot v. Railroad, 116 Mo. Mo. 450; Eichorn v. Railroad, 130 Mo. 575; Raines v. Railroad, 24 L. R. A. 226. But it is for the court to determine, in the first instance, whether or not there is any evidence tending to prove negligence. O’Malley v. Railroad, 113 Mo. 319 ; Fletcher v. Railroad, 64 Mo. 484; Bell v. Railroad, 72 Mo. 50.
It is contended by the defendant that the evidence does not tend to prove negligence ; that his omission to see that all the valves in the range were closed before he turned on the gas was not negligence and does not tend to prove negligence. This contention must be answered by applying the foregoing legal rules to the conduct of the defendant.
As shown by the evidence the range was properly constructed, had been properly set up and was left with all of its valves closed, so that had it remained in this condition it would have been entirely safe to have turned on the gas without testing the valves. The explosion did not occur from faulty construction nor from the failure of the person who put it up to leave it in a safe condition. By accident, or from having been tampered with by some intermeddler, the valves supplying the broiler with gas were opened and left open. Defendant had no notice of this condition when he had the gas turned on, neither was the unsafe condition of [195]*195the range brought about by the defendant or by any one for whose conduct he was responsible. If, therefore, he was negligent, his negligence was in omitting to .see that valves were closed which he had no reason to suspect were open.
The range had never been used by defendant, the gas had not theretofore been turned into it and was not, on the occasion, turned on for the purpose of using the range, but for the purpose of testing it. It had been in .the house for several days in charge of no one, under the care of no one. Some workmen were still occupied in the house giving it its finishing touches. These were the circumstances existing at the time the defendant turned the gas in the range when the explosion occurred. Defendant was not ignorant of the nature and qualities of gas. He was familiar with the construction and operation of gas -cooking ranges and was well aware that if a burner was lighted while gas was escaping into the broiler, an explosion would follow. The agency he was about to employ was a very dangerous one, when not under control, and we do not think, in these circumstances, the court should say as a matter of law, that it was not the duty of defendant to see that there was no means of gas escaping into the broiler before he turned it into the range for the first time. 1 Thompson on Negligence, sec. 694.
In Schmeer v. Keystone Gas Co., 147 N. Y. 529, s. c. 30 L. R. A. 653, the gas company, on application of some tenants of an apartment house, turned on gas. Other tenants in the same house did not apply for gas but their apartments were supplied with gas pipes through which gas escaped into their apartments and injury resulted. It was held: “The question is for the jury whether or not a gas company, before permitting gas to be turned on for the benefit of some of the tenants of the apartment house, used reasonable precautions to ascertain that no harm would thereby result to [196]*196other tenants who had not applied for it, by the gas escaping into their rooms.”
In Chisholm v. Atlanta Gas Light Co. (1876), 57 Ga. 28, the question was whether there was sufficient evidence to make out a prima facie case of negligence for the jury; the facts showing that the property damaged had been vacant; that on the evening of the explosion the plaintiff rented it for the evening, but no gas was used although gas fixtures were there; that defendant was notified of the house being vacant, that gas was not needed and must be cut off, which was done by means of a meter cock in the cellar; further, that there were two ways of cutting off the gas, one by the meter cock, the property of the plaintiff, but used by the defendant also; the other by the service cock under the curbstone, the property of the defendant and under its exclusive control; that if the gas had been cut off by the latter method the explosion would not have occurred; that defendants sometimes used the one and sometimes the other method, the service cock under the curbstone being the safer as it was under the exclusive control of the defendant; that the meter examined after the explosion, had been tampered with, a nail being found in the hole of the meter cock used to turn it, though the gas was turned off when examined, the gas getting into the building in that manner.
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BLAND, P. J. —
1. Where negligence is alleged a.s a cause of injury, the test of defendant’s liability is that the consequences of the act complained of were such as in the surrounding circumstances of the case might and ought to have been foreseen by the defendant. [193]*193Poeppers v. Railroad, 67 Mo. 715; Stanley v. Railroad, 114 Mo. 606; Railroad v. Hope, 80 Pa. St. 373; Railroad v. Standford, 12 Kan. 354; Doggett v. Railway, 78 N. C. 305; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264.
Generally speaking, one doing a lawful act upon his own premises can not be held for injurious consequences resulting therefrom, unless the act is so done as to constitute negligence, but if he is using a dangerous article, or instrument, in such a manner or in such circumstances that he has reason to know that it is liable to produce injury, he is responsible for the natural and probable consequences of his act to the person injured who is not himself in fault. Carter v. Towne and another, 98 Mass. 567; Dixon v. Bell, 5 Maule & S. 198; Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143; Elkins, Bly & Co. v. McKean, 79 Pa. St. 493. And the degree of care he is required to use depends upon the degree of danger. The duty increases with the degree of danger. Butcher v. Gas Co., 12 R. I. 149; Koelsch v. Philadelphia Co., 18 L. R. A. 759.
As is said in Hutchinson v. Boston Gas Light Co., 122 Mass. 219: “There must be an omission to do something which a reasonable man, acting upon considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which such a man would not do. ’ ’ Or, as expressed in Cobb v. Railroad, 149 Mo. 609: “It is the exigency of the situation, which, acting like heat’s action on the mercury in the thermometer, determines to what degree prudence must rise in order to reach the mark of ordinary care. ’ ’
But the words, “ordinary care,” “due care,” and similar expressions found in the law books, are not susceptible of exact definition applicable to every possible case, for the reason there is no absolute standard by which the conduct of individuals in each particular case can be brought and to which it can be compared [194]*194and tested. Eor want of a more perfect standard the courts have set up that somewhat shadowy personage, “the man of ordinary prudence,” by defining ordinary care as being “such care as ought reasonably to be expected of an ordinarily prudent person in the same situation as the person whose conduct is in question.” Known v. Railroad, 141 Mo. 86.
From these rules flow the further rule that where the facts are in dispute, or are such that reasonable men might fairly differ upon the question whether the conduct in question was negligent or not, the question is for the jury. Huhn v. Railroad, 92 Mo. 440; Lynch v. Railroad, 112 Mo. 420; Gratiot v. Railroad, 116 Mo. Mo. 450; Eichorn v. Railroad, 130 Mo. 575; Raines v. Railroad, 24 L. R. A. 226. But it is for the court to determine, in the first instance, whether or not there is any evidence tending to prove negligence. O’Malley v. Railroad, 113 Mo. 319 ; Fletcher v. Railroad, 64 Mo. 484; Bell v. Railroad, 72 Mo. 50.
It is contended by the defendant that the evidence does not tend to prove negligence ; that his omission to see that all the valves in the range were closed before he turned on the gas was not negligence and does not tend to prove negligence. This contention must be answered by applying the foregoing legal rules to the conduct of the defendant.
As shown by the evidence the range was properly constructed, had been properly set up and was left with all of its valves closed, so that had it remained in this condition it would have been entirely safe to have turned on the gas without testing the valves. The explosion did not occur from faulty construction nor from the failure of the person who put it up to leave it in a safe condition. By accident, or from having been tampered with by some intermeddler, the valves supplying the broiler with gas were opened and left open. Defendant had no notice of this condition when he had the gas turned on, neither was the unsafe condition of [195]*195the range brought about by the defendant or by any one for whose conduct he was responsible. If, therefore, he was negligent, his negligence was in omitting to .see that valves were closed which he had no reason to suspect were open.
The range had never been used by defendant, the gas had not theretofore been turned into it and was not, on the occasion, turned on for the purpose of using the range, but for the purpose of testing it. It had been in .the house for several days in charge of no one, under the care of no one. Some workmen were still occupied in the house giving it its finishing touches. These were the circumstances existing at the time the defendant turned the gas in the range when the explosion occurred. Defendant was not ignorant of the nature and qualities of gas. He was familiar with the construction and operation of gas -cooking ranges and was well aware that if a burner was lighted while gas was escaping into the broiler, an explosion would follow. The agency he was about to employ was a very dangerous one, when not under control, and we do not think, in these circumstances, the court should say as a matter of law, that it was not the duty of defendant to see that there was no means of gas escaping into the broiler before he turned it into the range for the first time. 1 Thompson on Negligence, sec. 694.
In Schmeer v. Keystone Gas Co., 147 N. Y. 529, s. c. 30 L. R. A. 653, the gas company, on application of some tenants of an apartment house, turned on gas. Other tenants in the same house did not apply for gas but their apartments were supplied with gas pipes through which gas escaped into their apartments and injury resulted. It was held: “The question is for the jury whether or not a gas company, before permitting gas to be turned on for the benefit of some of the tenants of the apartment house, used reasonable precautions to ascertain that no harm would thereby result to [196]*196other tenants who had not applied for it, by the gas escaping into their rooms.”
In Chisholm v. Atlanta Gas Light Co. (1876), 57 Ga. 28, the question was whether there was sufficient evidence to make out a prima facie case of negligence for the jury; the facts showing that the property damaged had been vacant; that on the evening of the explosion the plaintiff rented it for the evening, but no gas was used although gas fixtures were there; that defendant was notified of the house being vacant, that gas was not needed and must be cut off, which was done by means of a meter cock in the cellar; further, that there were two ways of cutting off the gas, one by the meter cock, the property of the plaintiff, but used by the defendant also; the other by the service cock under the curbstone, the property of the defendant and under its exclusive control; that if the gas had been cut off by the latter method the explosion would not have occurred; that defendants sometimes used the one and sometimes the other method, the service cock under the curbstone being the safer as it was under the exclusive control of the defendant; that the meter examined after the explosion, had been tampered with, a nail being found in the hole of the meter cock used to turn it, though the gas was turned off when examined, the gas getting into the building in that manner. The court held that the plaintiff having no reason to suppose that any of defendant’s gas was on the premises, was not bound to take any precautionary action in relation to the escape, neither for himself nor tenants, and that the principle that, in conducting its business as a gas producer and furnisher, the company was bound to use such ordinary skill and diligence as was proportioned to the delicacy, difficulty, and nature of that particular business, applied, and further that the evidence being sufficient to be submitted to the jury for them to say whether the explosion was caused by the defendant’s negligence or not, the granting of a nonsuit was error.
[197]*197In Finnegan v. Fall Eiver Gas Works Co. (1893), 159 Mass. 311, where the evidence of the plaintiff tended to show that his intestate was killedby inhaling gas while engaged in the cellar of a building, pursuant to his duty as an employee for the purpose of. reading a gas meter, but there was no evidence as to how the gas got into the cellar, nor of the defendant’s negligence, beyond the fact that the gas was there and that the ventilators of the cellar were stopped up, it was shown that the defendant, by taking the meter, voluntarily entered into a relation the result of which was to require some one to enter its premises in order to read its meter. The court held it was bound to use reasonable care to prevent the place necessarily entered by the deceased from becoming a death trap, and the jury might have found that it knew or ought to have known of the presence of gas in the cellar in quantities sufficient to be dangerous, and that it might have prevented the accumulation by ventilators, or might have put the meter in a different place, and therefore might have found the defendant guilty of negligence.
In Kimmel v. Burfeind (1866), 2 Daly 155, the plaintiff hired from the defendant the second floor of premises, the basement of which was occupied by another tenant. In the former’s apartments was a gas pipe or fixture, neither covered nor stopped. Gas was introduced into the basement by defendant’s tenant’s permission in the absence of the plaintiff, who, subsequently discovering the escape, notified the defendant who tested the pipe and found the escape in one part of the premises, but did not make a thorough search. Upon an explosion occurring, the court held the defendant liable for negligence, there being no contributory negligence on the plaintiff’s part, the defendant being guilty of a violation of the obligation which enjoins care and caution and of a duty which he owed to his tenant.
In Barrickman v. Marion Oil Co., 44 L. R. A. 92, [198]*198it was said: “A person or corporation engaged in furnishing natural gas to stoves, heaters, pipes, etc., for purposes of domestic light, heat, and fuel in a dwelling house, is hound to exercise such care, skill, and diligence in all its operations as is called for by the delicacy, difficulty and dangerousness of the nature of the business, that injury to others may not be caused thereby; that is to say, if the delicacy, difficulty, and danger are extraordinarily great, extraordinary skill and diligence are required.”
These cases seem to us to announce the doctrine that where an injury results from an explosion of gas that, although some precautions had been taken to guard against an explosion, yet if the evidence shows that an effectual means to prevent it was at hand, and the defendant did not avail himself of this means it is then a question for the jury to say whether or not the defendant was negligent. This doctrine is the logical sequence of the rule that where one introduced a dangerous agency for his own use or emolument, that is, controllable by due care, attention or science, he takes upon himself the responsibility of its use. Holden v. Gas Co., 3 C. B. 1. No explosion would have occurred had defendant tested the gas valves in his range before turning on the gas. Whether or not his failure to make the test was negligent, we can not decide as a question of law, therefore, it was properly submitted to the jury.
2. Instruction No. 1, given by the court for plaintiff, does not, as contended for by defendant, assume as a matter of law that the defendant was guilty of negligence; on the contrary it leaves it to the jury to say whether or not the facts in evidence made out a case of negligence. The instruction is supported by the case of Dowell v. Guthrie, 116 Mo. 646.
The instructions do not conflict. They are not con-' tradictory or repugnant, but on the contrary we think fairly and fully submitted the issues to the jury.
[199]*199The judgment is affirmed.
Judge Reyburn concurs ; Judge Goode dissents on the ground that he deems the decision of the majority of this court in conflict with the decision of the Supreme Court in Fuchs v. St. Louis, 167 Mo. 620, and this ease is therefore certified to the Supreme Court.