Mr. Chief Justice Alvey
delivered the opinion of the Court:
At the close of the evidence, the defendant moved the court for a direction to the jury to return a verdict for the defendant, because of the supposed insufficiency of the evidence to render the defendant liable to the plaintiff. This request was refused, and we think properly.
It is argued by the defendant, the present appellant, that there was no duty owing to the plaintiff by the defendant; and in order to maintain an action for a negligent injury, it must appear that there was a legal duty owing from the person inflicting the injury to the person on whom it was inflicted, and that such duty has been violated by the want of ordinary care on the part of the defendant. This, as a general proposition, may be conceded. But it does not embrace or apply to this case.
Here the defendant was under a contract duty to the municipal government of the District, to maintain the water meter upon its premises in good condition, and in such position that it could be approached and examined with reasonable safety by the agents of the municipal government. The duty of the defendant was created by contract, and the right of the plaintiff to go upon the premises of the defendant, was derived from the municipal government; and there was a duty of the defendant to the plaintiff, which was simply the result of the contract duty [193]*193of the defendant to the municipal government of the District. Burrows v. March Gas Co., L. R. 5 Exch. 67, 71. It is true, there was no privity of contract as between the plaintiff and defendant, but there was a right created by the contract with the District government that afforded protection to the plaintiff against the negligence or want of reasonable care of the defendant.
The principle that applies to and controls this case is well and aptly illustrated by what is now regarded in the courts of England as a leading case, namely, the case of Indermaur v. Dames, L. R. 1 C. P. 274, affirmed on appeal in the Exchequer Chamber, L. R. 2 C. P. 311. In that case the plaintiff was a journeyman gasfitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant’s sugar refinery. While on the upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering sugar. At the trial it was found as a fact that there had been no want of reasonable care on the part of the plaintiff; and the court held, that, on the admitted facts of the case, the plaintiff was in the building as a person on lawful business, by virtue of a contract, and not upon bare permission. And with respect to the rights of such person, being upon the premises of the defendant in the performance of duty in the course of lawful business, the court said : “That he, (the plaintiff,) using reasonable care on his part for his own safety, is entitled to expect that the defendant shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.”
This case does not fall within the principle of the case of Larmore v. Crown Point Iron Co., 101 N. Y. 391, and other [194]*194cases of that class, where the person injured was upon the premises of the defendant, where danger was not apparent, simply as a volunteer, not in the performance of duty. In that case the plaintiff was held not to be entitled to recover.
But in the case of Parry v. Smith, 4 C. P. Div. 325, the precise question here presented seems to have arisen and been decided. In that case the defendant, a gasfitter, was employed by the master of the plaintiff to repair a gas meter upon his premises, and for the purpose of doing the work took away the meter, and in lieu of it made a temporary connection, by means of a flexible tube between the inlet pipe and the pipe communicating with the house. The plaintiff, the servant of the owner of the house and the employer of the gasfitter, having gone in the ordinary performance of his duty with a light into the cellar where the meter had been, gas, which had escaped by reason of the insufficiency of the connecting tube, exploded and injured him. The case was reserved for full argument, and appears to have been fully argued upon the authorities. And the learned judge in his opinion, in referring to the respective contentions of the parties, says:
“Mr. Waddy contended, on the part of the defendant, that there was no cause of action unless there was privity between the plaintiff and the defendant, or unless what was done by the defendant amounted to a public nuisance, or unless there had been, on the part of the defendant, fraud, misrepresentation, or concealment. It was contended by Mr. Finlay, on the part of the plaintiff, that the action would lie, because the defendant knew he was dealing with gas, a thing highly dangerous in itself, unless great care and caution were used in its management; that the plaintiff’s right of action was founded, not on contract, but on the duty which attaches to the use or dealing with a thing in its nature highly dangerous and likely to cause damage, unless managed with great care and caution.
“I think,” says the judge, “the plaintiff’s right of action [195]*195is founded on a duty which I believe attaches in every case where a person is using or is dealing with a highly dangerous thing, which, unless managed with great care, is calculated to cause injury to bystanders. To support such a right of action, there need be no privity between the party injured and him by whose breach of duty the injury is caused, nor any fraud, misrepresentation or concealment; nor need what is done by the defendant amount to a public nuisance. It is a misfeasance independent of contract.”
That case goes farther than is required that we should go here to maintain the right of action against the defendant; but the ruling there fully embraces the proposition now under consideration. We are of opinion, therefore, that the right of the plaintiff to sue the defendant for the injury received, if supported in fact and the negligence be shown, is clear beyond question.
The learned justice below, upon the whole evidence, gave a most clear and admirable charge to the jury, with which we entirely agree, with one single exception; and that is the instruction at the instance of the plaintiff, whereby the jury were directed, “ That if they believed that the injuries to the plaintiff for which he seeks to recover, were caused by an explosion of gas in the pit where the water meter was located, which explosion was unusual and a thing which ought not to occur in the ordinary and proper management of the affairs of the defendant, then the fact of such explosion is prima facie evidence of negligence on the part of the defendant, and is sufficient to entitle the plaintiff to recover, unless the defendant overcome this presumption and satisfies the jury by a preponderance of evidence that such explosion was caused by no.negligence or carelessness on its part.”
This instruction imposed upon the defendant the burden of proving a negative; though the general principle is, in actions founded upon the alleged negligence of the defendant, that the burden of proof is upon the plaintiff.
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Mr. Chief Justice Alvey
delivered the opinion of the Court:
At the close of the evidence, the defendant moved the court for a direction to the jury to return a verdict for the defendant, because of the supposed insufficiency of the evidence to render the defendant liable to the plaintiff. This request was refused, and we think properly.
It is argued by the defendant, the present appellant, that there was no duty owing to the plaintiff by the defendant; and in order to maintain an action for a negligent injury, it must appear that there was a legal duty owing from the person inflicting the injury to the person on whom it was inflicted, and that such duty has been violated by the want of ordinary care on the part of the defendant. This, as a general proposition, may be conceded. But it does not embrace or apply to this case.
Here the defendant was under a contract duty to the municipal government of the District, to maintain the water meter upon its premises in good condition, and in such position that it could be approached and examined with reasonable safety by the agents of the municipal government. The duty of the defendant was created by contract, and the right of the plaintiff to go upon the premises of the defendant, was derived from the municipal government; and there was a duty of the defendant to the plaintiff, which was simply the result of the contract duty [193]*193of the defendant to the municipal government of the District. Burrows v. March Gas Co., L. R. 5 Exch. 67, 71. It is true, there was no privity of contract as between the plaintiff and defendant, but there was a right created by the contract with the District government that afforded protection to the plaintiff against the negligence or want of reasonable care of the defendant.
The principle that applies to and controls this case is well and aptly illustrated by what is now regarded in the courts of England as a leading case, namely, the case of Indermaur v. Dames, L. R. 1 C. P. 274, affirmed on appeal in the Exchequer Chamber, L. R. 2 C. P. 311. In that case the plaintiff was a journeyman gasfitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant’s sugar refinery. While on the upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering sugar. At the trial it was found as a fact that there had been no want of reasonable care on the part of the plaintiff; and the court held, that, on the admitted facts of the case, the plaintiff was in the building as a person on lawful business, by virtue of a contract, and not upon bare permission. And with respect to the rights of such person, being upon the premises of the defendant in the performance of duty in the course of lawful business, the court said : “That he, (the plaintiff,) using reasonable care on his part for his own safety, is entitled to expect that the defendant shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.”
This case does not fall within the principle of the case of Larmore v. Crown Point Iron Co., 101 N. Y. 391, and other [194]*194cases of that class, where the person injured was upon the premises of the defendant, where danger was not apparent, simply as a volunteer, not in the performance of duty. In that case the plaintiff was held not to be entitled to recover.
But in the case of Parry v. Smith, 4 C. P. Div. 325, the precise question here presented seems to have arisen and been decided. In that case the defendant, a gasfitter, was employed by the master of the plaintiff to repair a gas meter upon his premises, and for the purpose of doing the work took away the meter, and in lieu of it made a temporary connection, by means of a flexible tube between the inlet pipe and the pipe communicating with the house. The plaintiff, the servant of the owner of the house and the employer of the gasfitter, having gone in the ordinary performance of his duty with a light into the cellar where the meter had been, gas, which had escaped by reason of the insufficiency of the connecting tube, exploded and injured him. The case was reserved for full argument, and appears to have been fully argued upon the authorities. And the learned judge in his opinion, in referring to the respective contentions of the parties, says:
“Mr. Waddy contended, on the part of the defendant, that there was no cause of action unless there was privity between the plaintiff and the defendant, or unless what was done by the defendant amounted to a public nuisance, or unless there had been, on the part of the defendant, fraud, misrepresentation, or concealment. It was contended by Mr. Finlay, on the part of the plaintiff, that the action would lie, because the defendant knew he was dealing with gas, a thing highly dangerous in itself, unless great care and caution were used in its management; that the plaintiff’s right of action was founded, not on contract, but on the duty which attaches to the use or dealing with a thing in its nature highly dangerous and likely to cause damage, unless managed with great care and caution.
“I think,” says the judge, “the plaintiff’s right of action [195]*195is founded on a duty which I believe attaches in every case where a person is using or is dealing with a highly dangerous thing, which, unless managed with great care, is calculated to cause injury to bystanders. To support such a right of action, there need be no privity between the party injured and him by whose breach of duty the injury is caused, nor any fraud, misrepresentation or concealment; nor need what is done by the defendant amount to a public nuisance. It is a misfeasance independent of contract.”
That case goes farther than is required that we should go here to maintain the right of action against the defendant; but the ruling there fully embraces the proposition now under consideration. We are of opinion, therefore, that the right of the plaintiff to sue the defendant for the injury received, if supported in fact and the negligence be shown, is clear beyond question.
The learned justice below, upon the whole evidence, gave a most clear and admirable charge to the jury, with which we entirely agree, with one single exception; and that is the instruction at the instance of the plaintiff, whereby the jury were directed, “ That if they believed that the injuries to the plaintiff for which he seeks to recover, were caused by an explosion of gas in the pit where the water meter was located, which explosion was unusual and a thing which ought not to occur in the ordinary and proper management of the affairs of the defendant, then the fact of such explosion is prima facie evidence of negligence on the part of the defendant, and is sufficient to entitle the plaintiff to recover, unless the defendant overcome this presumption and satisfies the jury by a preponderance of evidence that such explosion was caused by no.negligence or carelessness on its part.”
This instruction imposed upon the defendant the burden of proving a negative; though the general principle is, in actions founded upon the alleged negligence of the defendant, that the burden of proof is upon the plaintiff. As said by the Supreme Court of the United States, in the Nitro[196]*196Glycerine Case, 15 Wall. 524, 537: “The mere fact that injury has been caused is not sufficient to hold the defendants. No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of.”
There are cases, it is true, where from their peculiar nature, and the high degree of care required of the defendant, the occurrence of the accident may furnish a fair inference that the accident would not or could not have occurred but for the precedent negligence on the part of the defendant. But this case is not of that character. The simple fact that gas was found accumulated in the pit, though unusual, and not according to the ordinary occurrence of events, did not give rise to a prima facie presumption that it was there by the negligence of the defendant. At most it was but a circumstance to be considered in connection with the other facts of the case tending to prove negligence. The defendant was only required to exercise such reasonable care with respect to the condition of the pit as persons of ordinary careful habits would have exercised under a similar condition of things ; and if the officers and agents of the company had no reasonable cause to believe that gas in dangerous quantities existed in the pit, negligence ought not to be imputed to them. The meter had been used, and inspected from time to time, in that situation, for a considerable time, and no cause for apprehension of danger by reason of accumulation of gas in the pit, had ever before been discovered to exist. The time of the happening of the accident was the first time that gas was actually shown to have accumulated in the pit around the meter; but how long that state of things had existed previous to the actual discovery, can only be matter of inference from the circumstances in proof. The leak from the gas pipe was only [197]*197discovered after the accident, and when the danger had become manifest. Whether the circumstances in proof were sufficient to satisfy the jury of the fact that the defendant, by its officers and agents, had such previous warning or admonition of the escape or accumulation of the gas as would have put persons of ordinary care and caution on inquiry and investigation to discover the leak or source of the escaping gas, was the principal question of fact to be determined.
The learned justice below put the question to the jury very fully and clearly, and we cannot do better than to quote his language. He charged the jury that the question was: “ Ought they, the officers of the company, in the exercise of due care, to have known that there was gas there and where it was and where it came from ? It is agreed on all hands that the gas, if it was in this pit, escaped from one of two points — either the bell joint or the drip pipe — both of them a long distance away from this pit. The question is, ought these officers, in the exercise of due care, to have known that there was gas there and to have traced it down to its origin or source? If they ought, then the case is to be considered as if they did know that the gas was escaping from this point, and then the question still would be whether they then ought to have known that it was possible for that gas to escape along those pipes, so as to enter this pit and make it dangerous ; or, on the other hand, would they be justified in thinking that was an impossibility ? If you find that they were guilty of negligence in these respects the plaintiff would have a right to recover for the consequences of the injury. If you find that they acted as reasonable and prudent men, either in disbelieving the presence of gas there or in disbelieving the possibility of its escaping from this place and traveling along to the pit, then they were not guilty of negligence, and the company would not be responsible. It is, therefore, [198]*198altogether a question of due care on the part of these officers.”
With the single exception of the proposition, as to the burden of proof, to which we have already adverted, the charge is quite unexceptionable, and fully covers the whole case, and placed the questions for determination before the jury in a manner as favorable to the defendant as it had any right to ask under the law of the case. In the rejection of the separate propositions offered by the defendant for instruction, we discover no error; nor in any of the rulings in respect to the admission of evidence. The only error we find is that in respect to the presumption of negligence, and for that we must reverse the judgment and remand the cause for a new trial.
Judgment reversed, and cause remanded.