tributory negligence as matter of law, but the question should be submitted to the jury."

Amongst the authorities cited in support of this text is Brezee v. Powers, 80 Mich. 172, in which it is said:

"Where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon inferences to be drawn from facts and circumstances about which honest, intelligent and impartial men might differ, such a case should be submitted to the jury."

The trial court did not err in submitting the question of plaintiff's contributory negligence to the jury nor in the charge upon that subject.

Not denying that there was an explosion in defendant's building with an outburst of flames, in the air and on the water, which set fire to and destroyed plaintiff's houseboat, defendant's further contention is that a directed verdict should have been granted in its behalf for the reason that no presumption of negligence arises from the bare fact of an explosion, and the record is destitute of testimony showing any negligent act or omission on its part causing or contributing to the explosion.

The court charged the jury that no presumption of defendant's negligence arose from the bare proof of an accident or explosion on its premises, that the burden of proving freedom from contributory negligence on her and her husband's part, and negligence on defendant's part causing the injury complained of rested upon plaintiff. If right in the assumption that the testimony viewed in its most favorable light for plaintiff, which is the recognized test, raised an issue of fact for the jury, the charge is not otherwise complained of, as we understand the position of counsel, nor open to criticism.

Counsel for defendant cite as analogous in facts. and particularly in point here, Cosulich v. Standard

Oil Co., 122 N. Y. 118 (25 N. E. 259). In that case plaintiff's vessel was lying at a wharf in Newton creek, King's county, N. Y., next adjacent to defendant's wharf and premises on which it conducted a petroleum refinery, where some oil caught fire from an explosion and while burning a quantity of it ran down a pipe leading to a lighter lying at its wharf loaded with petroleum. The lighter exploded and set fire to plaintiff's vessel at the adjoining dock some 20 feet away. Although quite analogous in its general outlines, that case does not impress us as particularly helpful to the present inquiry, for the principles of law applied to the undisputed facts in that case are conceded here. The opinion is a long one, dealing with many negligence cases involving explosions and similar accidents. It is somewhat peculiarly commented on by Judge Thompson in his work on negligence with the concluding reflection:

-"but a great many judges forget the limitations of their own power and perform the functions of jurors in actions at law for damages, in this way." 1 Thompson on Negligence, note to section 763.

Be that as it may, the essence of the long decision in facts and law as disposed of appears in the following excerpts:

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"The plaintiffs proved simply an explosion. The inference is perhaps permissible that the subject of the explosion was the receptacle described as a boiler, tank, still or agitator, although no witness pretends to assert that it was destroyed or torn down. If it may be inferred that it was the tank the evidence is silent as to the cause. * he who alleges injury sustained through the negligence of his neighbor, with whom he has no contract relation and who owes him no other duty than that he shall observe reasonable care to prevent injury, must prove the facts from which an inference of the particular act of negligence charged can be drawn."

Here facts were proved beyond simply an explo

sion, from which plaintiff claims and defendant denies the inference of negligence can be drawn. The facts upon which plaintiff relies are scattered through the testimony in a more or less fragmentary way, of claimed varying significance, full understanding of which an examination of the entire record might best subserve, but we can only note certain significant items of testimony which at least distinguish this from the Cosulich Case.

Defendant used large quantities of gasoline in its testing department taken from a storage tank of 12,000 gallons capacity sunken in the yard near by. It was elevated from there by a vacuum pump into a gravity tank just outside the building with a capacity of three or four barrels, from which the gasoline passed by gravity through piping to the motors. The gravity tank was elevated so as to keep a 10 or 12 foot head on the motors. On that side was an open ditch about 16 inches wide leading along the building from the creek for about 60 feet to where, as a witness states, "it got out of the building to an outlet." From 55 to as high as 100 motors a day were tested in the building, supplied with gasoline from the small gravity tank by the wall outside. Carl C. Hinkley, defendant's work manager and engineer, testified the vacuum pump supplying gasoline from the sunken storage tank pumped continually-"all the time," the overflow running back into the big tank, and "in taking out gasoline for motors there was a third pipe." Plaintiff contended and introduced testimony to show that the overflow was not properly cared for and safely returned to the big storage tank but quantities of gasoline were negligently permitted to overflow from the small elevated gravity tank to the ground, spreading into the open ditch and standing in pools, creating a condition which was in effect a dangerous nuisance. This was an issue of fact for the jury, of which Hinkley said when making denial of the fact:

"it would be highly dangerous to have a surplus, so many motors you know. For instance, if there was considerable gasoline permitted to accumulate around the premises, it would be highly dangerous, so many motors, you know. If gasoline was allowed to accumulate around the premises, it would be dangerous. I know where the ditch was on the outside of the premises that day. If that ditch was filled with gasoline or partly filled or if it had any gas in it at all, there would be a certain amount of vapor always present. There would be a certain amount present if used with lubricating oil. * * If gasoline was present there would be also gasoline action in the ditch. It is obvious that the greater the quantity, the greater the gasoline action. I should imagine if there was sufficient gasoline saturating the air it would ignite if it came in contact with flame."

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An apparently disinterested witness named Thompson, who worked for the city at the garbage grounds adjoining defendant's property and was near by at the time of the explosion, testified:

"I have seen this tank overflow for hours at a time. Gasoline came out of it. The gasoline would flow on the ground, lay there in a pool and run off into the creek. Some of it remained in that pool. This was not protected in any way. * I saw the can run over day after day. There is a little

*

ditch running all the way through where this stuff comes out of the tank in this ditch, * * * I have seen gasoline and oils in this ditch; I saw this on the 16th of October, 1916. There was oil and gasoline in it. * There was quite a little bit in it, water and gasoline and oil together. The bottom of the ditch was covered with it. The ditch was probably 16 inches wide, just a narrow little gutter down to drain it. There was a flat hole, little trap running from the edge of the hole to the ditch and the flat hole was full. I was down near where the sewer empties into the stream on the day in question. I saw oil and water coming out of it, right at the corner of the Chalmers building. * * *It was quite a little stream running there."

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Of the explosion Thompson said in part:

"I was standing in the barn door and was looking in that direction. The explosion took place about the middle of the building. About the time of the explosion the air was on fire, gasoline oil or something going out of all the windows over there. The flames came from the Chalmers plant. I saw the burning flames in the air. The burning flames lit on the houseboat of the Woods. Prior to the explosion I did not see any flames around the houseboat. I was looking in that direction. After the explosion I saw flames light on the houseboat and saw the houseboat afire."

Another witness near by who ran out on hearing the explosion to see what had happened said in part:

"I jumped up quick and ran outside and when I got outside everything was afire. The houseboat was afire. It was all over the houseboat, right around where the boat lay and kept working up further because Mr. Benowski had all he could do to get his boat out of the way. * * * There was fire inside the Chalmers plant. I saw fire coming out of the manhole at the 'foundation of the one-story building. I saw flames coming from the inside of the building. The point where the fire came out of the manhole there was about in the center of the one-story building."

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Outsiders testified to two apparent drainages from the test block building, a sewer from the southeast corner and an open ditch on the side of the building towards the garbage plant. It also appeared from Hinkley's testimony there was some kind of a tunnel system under the building. He said he would "judge the tunnels are about 20 inches wide and 3 feet deep"; that they were "just a trench system from the block test" and not a part of the sewer system; that the only water which ran out of the sewer at the southeast corner was waste water from cooling the engines, and the only oil which could pass out with it "would be the lubricating oil that was backed up by the water