printing house at the southeast corner of Jackson and Eighth streets, in Topeka, where he was working as a pressman on the 19th day of December, 1909. It is alleged that the gas company was negligent in failing to keep and maintain its mains, pipes, and connections in proper condition, and in negligently permitting gas to escape into manholes and trenches, and into and through a telephone conduit to the place where the explosion occurred. The answer contains a general denial and a defense, based upon an allegation that the city had negligently, and without notice to the com pany, placed a water pipe over and resting upon the gas main in such a manner as to cause the latter to break and leak gas, and that if any gas escaped into the telephone manhole and conduit it was from such break. The company also pleaded contributory negligence. was found broken at a point underneath a water lateral, 6 inches in diameter, which crosses from the north side of Seventh street on the east side of Jackson street to a hydrant. This water lateral was placed there in April, 1909. The water pipe was raised a little at that point, in order to go over the gas main, and lowered beyond it. When laid, it was about the thickness of a hand above the gas main. It was depressed about 12 or 2 inches at the break, leaving an aperture through which gas was escaping, although the broken ends were closely joined at the top. The water pipe above was close to it, leaving an interstice of possibly a quarter of an inch filled with clay. These defects were near the telephone manhole at the corner before referred to. A sewer leading along Seventh street passed within 10 feet of that manhole. Escaping gas was discovered at various other nearby points in the city a few days after the appellant was injured. Evidence was offered tending to prove the following facts: Gas escaped in the summer Occupants of the premises where gas esand fall of 1909 in such quantities as to be offensive to people residing near the inter- caped the preceding summer called the gas company at that time by telephone, making section of Seventh and Jackson streets, causing a shortage in the supply of two fami- complaint and asking that some one be sent lies for domestic uses. A gas main extend to ascertain about the leakage. Soon aftered east and west in Seventh street, from ward a man came to the premises, examined which service pipes of the company led to the gas pipes in the buildings, and made exadjacent property, where such indications of amination in the alley to the rear; but nothleakage appeared. Two explosions occurred ing further was done, and the leakage continued. On December 17, 1909, the mayor in December, 1909, the last one five days beaddressed a letter to the superintendent of fore the one here complained of, and one on the following day in a cistern in Seventh the gas company, stating that much gas was street, about 200 feet from the intersection escaping from the mains and service pipes referred to, and also in a telephone manwhich had already caused considerable damhole in Seventh street, about 600 feet from age, and was a menace to life and property, such intersection, 10 days before the plain- and requested that repairs should be made. tiff was injured. There was an explosion in On December 20th, in a conference with the the telephone manhole at Seventh and Jack-mayor, the superintendent attributed the son streets and another in a manhole between that point and the Capper building on the day following the explosion in that building. These manholes were connected by telephone conduits, one of which led from the one at Seventh and Jackson streets into the basement where the appellee was injured, which is about 600 feet distant. On December 23d the gas main and connecting service pipes on Seventh street, at the intersection of Jackson street and easterly therefrom, were uncovered, and it was found that at and near their connection with the main these pipes were perforated; little holes appeared therein about the size of an eight-penny nailhead. The pipes were corroded, and the threads of some of them, where they were screwed into the main, were eaten off with rust. Gas was escaping through these openings, and took fire in the ditch. A piece of the perforated pipe was in evidence. These service pipes, or some of them, led to the premises where the escape of gas had been noticed in the summer before. The gas main was put down in the year 1879. Some of the service pipes were put in then and some afterwards. The main, which is a 3-inch pipe, trouble to sewer gas. Two daily newspapers of the city frequently published articles in the month of December, 1909, and before the explosion in the Capper building, referring to gas explosions in the city and the defective condition of mains and pipes. The superintendent was a subscriber to these papers, and read these articles. His office is situated within three blocks of the intersection where the defective pipes were found. When the water main was being put down along Seventh street, while the work was in progress east of and near to Jackson street, the attention of the gas company was called to that work by the superintendent of the city waterworks, and a foreman of the gas company came and looked after some service pipes crossed by the gas main between Jackson street and the alley east of it. The water lateral was then being laid across Seventh street over the gas main. A foreman of the water department and the foreman of the gas company stood above the ditch where the pipes crossed, and where the break afterwards appeared, as already stated, and talked there about five minutes, with the crossing below open and in view; but nothing was said about the pipes at that point or the crossing. The ditch remained open at that place about two weeks. The gas company had not been called, however, with respect to this crossing, but to look after service pipes between that point and the alley to the east. ble for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happened to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result." Railway Co. v. Columbia, 65 Kan. 390, 398, 69 Pac. 338, 340 (58 L. R. A. 399). In the Dabney Case, it was shown that gas escaped from an unfinished gas well into the open air during the suspension of work for the night. An explosion occurred; but there was no evidence showing how the escaping gas came in contact with fire. It was said that, while it was possible "that lightning might that some careless person might throw a lighted match into it, or fire might, by some accidental means, be brought in connection with the gas, it is apparent that in the usual or ordinary course of events these would not be expected to occur.” Gas Co. v. Dabney, 79 Kan. 820, 827, 102 Pac. 488, 491. [1] There was no evidence of the cause of the ignition of gas in the basement where the explosion occurred, by which appellant was injured, and the jury so found. An instruction was asked to the effect that, in the absence of such evidence, the action must fail. This was refused, and an instruction was given to the effect that such evidence was not essential to a recovery, if the proof was otherwise sufficient, and the plaintiff strike the well and cause an explosion, or himself was not negligent. This instruction, and the refusal to give the one requested, are among the principal reasons urged for reversal of the judgment. The argument is that there was an efficient and direct cause intervening between the negligence of the company and the injury to the appellant; that the ignition was this proximate cause; and that the alleged negligence of the company only furnished the condition or gave rise to the occasion by which the injury was made possible. The opinions of this court in Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399, Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658, 121 Am. St. Rep. 416, 12 Ann. Cas. 441, Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488, and Colwell v. Parker, 81 Kan. 295, 105 Pac. 524, are cited in support of this proposition. The principle enunciated in the cases cited is not applicable to relieve a party from such results of his negligence as ought reasonably to have been foreseen. A multitude of definitions have not made the meaning of the term "proximate cause" entirely clear in every possible situation; and it is affirmed by a distinguished author that no fixed and immediate rule can be applied to all cases. The same author quotes from an opinion in Willey v. Belfast, 61 Me. 575: "If it ever happens that logic and common sense cannot be reconciled in the application of this doctrine to the decision of causes, logic must give way." Thompson on Neg. (2d Ed.) § 47. To hold that a man engaged in his usual work, exercising ordinary care and unwarned of any danger, must, when injured by such an explosion, prove what intervening hand or agency caused the spark is unreasonable, and in many cases would be impossible. A cause of injury is not too remote if, according to the usual experience of mankind, the result ought to have been apprehended. Lane v. Atlantic Works, 111 Mass. 136; Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A. (N. S.) 515. If the intervening agency is something not likely to occur or to be foreseen, the rule is otherwise. This distinction is stated in the Co In Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635, it appeared that gas had been allowed to escape and accumulate in a cellar, and from some unknown cause exploded. Such an explosion was a natural and probable consequence which might reasonably have been foreseen; and the company which negligently permitted the gas to escape was held liable for the resulting damages. It was contended, as it is here, that a failure to prove how an accumulation of gas in a cellar became ignited was fatal to a recovery of damages, caused by its explosion. It was said: "To this contention we do not agree. Defendant was employing for its profit a subtle and highly explosive agency. The rule at common law is that, where an agent so introduced is controllable by care, attention, or science, he who receives the benefit must assume the responsibility." The same principle was applied in a similar case, in Oil City Gas Co. v. Robinson, 99 Pa. 1, and is stated with illustrations in Thornton on Oil & Gas, §§ 614, 637. Other authorities are collated in a note in 32 L. R. A. (N. S.) 809-819. [2] It is contended that the evidence is insufficient to show notice to the company of the defective condition of its pipes. This evidence has already been stated, and, if competent, was sufficient to uphold the finding that the company had notice. This subject has been recently considered in this court (Hashman v. Gas Co., 93 Kan. 328, 111 Pac. 468), and extended comments here are not necessary. Care was required commensurate with the dangerous character of the agency and the consequences that ought to have been apprehended from its escape. Hartman v. Citizens' Nat. Gas Co., 210 Pa. 19, 59 Atl. 315. It is true that no one informed the company that gas was escaping at the particular place of the injury (and this was true in the Hashman Case also); only a block distant, that conduits and oth- | allowed, because any substantial discrepancy er passages would probably conduct it to places where it would cause disaster, that such disasters had already occurred, that it was escaping quite near the very place where the defects were afterwards found in such quantities as to cause complaints, that such escape and explosions therefrom were a matter of notoriety, as shown by newspaper publications, and that these were read by the superintendent of the company, are sufficient to warrant the finding of notice. Besides, there was a formal notice from the mayor, calling attention to public danger and demanding action. It is said that this was insufficient, because no particular locality was pointed out. It would seem to be the duty of the gas company, in the circumstances shown in this case, to take some active measures to ascertain the location and determine the cause. It is argued that, as only two days intervened between the mayor's written notice and the explosion in question, sufficient time had not elapsed; but this did not justify inaction, in view of the information already possessed by the company. It was for the jury to determine whether reasonable vigilance would not have discovered the defects, before the disaster complained of, which were found soon afterwards. Shirey v. Consumers' Gas Co., Appellant, 215 Pa. 399, 64 Atl. 541. would tend to show a leakage. It must be conceded that the evidence had only a remote bearing, if any, upon the issue; but it could not have been prejudicial, especially in view of the witness' statement that he was not sufficiently acquainted with the business to say whether his company would be the loser from leakage or not. Objection was made to evidence of the escape of gas after the explosion in question; but the court correctly limited the application of this evidence to its bearing upon the. condition of the pipes and mains before the injury to appellee occurred. The same question was presented in the Hashman Case, where it was held that there was no error in allowing such evidence for the purpose to which it was limited. Other objections to testimony have been considered; but no error appears in the rulings thereon. [3] It is argued that the complaints made in the summer and fall by residents near the seat of the trouble should not have been allowed, because the identity of the person called by telephone and of the persons who appeared on the scene in response thereto was not established. There was but one gas company in the city, and the call was upon that company. The person coming to make examination appeared to be acting pursuant to the complaint in the usual course of such business. It was not shown on the trial, nor is it asserted here, that the complaints were not received. In the circumstances shown, it cannot be held that the admission of the evidence was erroneous; and its weight was for the jury to determine. [4] It is contended that the evidence, relating to newspaper publications concerning previous explosions, was incompetent. The evidence was elicited by the examination of the superintendent of the company to show that his attention had been thus called to the matter, and was admissible for that purpose, as the evidence of conversations conveying the same information would have been. In the cross-examination of an officer of the gas company, questions were allowed to be asked designed to ascertain whether this company paid to another company supplying it with natural gas for all gas received, or only for that sold and delivered by this company to its customers. It is argued by the appellee that this evidence was [6] It is insisted that several of the findings are unsupported by evidence. These findings are to the effect that gas escaped from the service pipes on the north side of Seventh street, and entered the basement of the printing house through the telephone conduits. It was shown, as we have seen, that the pipes were defective, and that gas escaped therefrom; that the telephone conduit led from the manhole at Seventh and Jackson streets directly to the basement where it exploded; that the volume of gas issued from the conduit; and that an explosion had occurred in other manholes, also connected by conduits to the same manhole. It is true that the course of the gas from the defective pipes to the manhole near by was not traced by any witness. The same difficulty appears in the application of the defendant's theory that the gas in the conduits all came from the broken main; for no witness traced its course from the break to the conduit. Besides, there was no evidence of the means by which it reached the cistern where other explosions had occurred. The fact remains that natural gas was in these conduits; it came from the defendant's pipes or main, for there was no other source; and it was for the jury to find whether it came from the defective service pipes, the broken main, or both. The jury found that the company had no notice of the leak from the break, but did have notice of gas escaping from the defective service pipes. If the company had no notice of the leak in the main where broken, it could not have been liable, under the instructions given to the jury, for injuries from gas escaping from the break. It is therefore unimportant now whether such break resulted from the negligence of the city in laying its water pipe above the gas main, or of the company in suffering this to be done without objection or further examination; and apparent contradictions in the findings upon that matter, complained "(4a) Was it the negligence of the defendant that caused the said break in the main at the point of Jackson and Seventh streets, and caused the escape of said gas therefrom? Answer: Yes; and contributory cause." of by the appellant, are immaterial. These cistern was in one of the designated parts findings are: of streets, and if it was deemed important to have a finding whether gas came to the surface otherwise than through the cistern a request should have been made for a further answer. In any event, in view of the evidence showing the escape of gas in that locality and the several explosions therefrom, the fact sought to be developed would not be controlling. "(10) What caused the break in the defendant company's main at the point where the water lateral was laid near the corner of Jackson and Seventh streets? Answer: We don't know." "(12) Was it the negligence of the defendant company which caused the break in its main at the corner of Seventh, and Jackson streets? Answer: Yes; and contributory cause." An instruction was given to the effect that, if the break in the main at Seventh and Jackson streets caused the escape of gas, and the broken condition had existed for such length of time that, in the exercise of due care, it should have been known and repaired, and the company failed and neglected to discover and repair the broken pipe, and injuries to the plaintiff resulted from gas escaping from such break and other gas from the service pipes, the company was negligent in failing to repair the broken main. This is alleged to be erroneous; but, as the jury found that the company had no notice of the break referred to, and the court, by other instructions, predicated liability upon such notice, no prejudice resulted from the instructions, even if erroneous. It is probable that finding 4a was based on the supposed negligence of the gas company in offering no objection to the manner in which the water lateral was laid over its main, and its failure to guard against consequences to be anticipated from laying it in that manner. In answering that they did not know what caused the break, it may be presumed that the jury understood the question to relate to the particular means or agency operating immediately to cause the break, such as the weight of the All the instructions given and refused have been examined. The substance of water pipe, the settling of the ground, or other disturbance. The answers in findings those refused, so far as deemed proper and 4a and 12, compared with finding 10, indi-material, appears to have been included in cate that the jury understood that that ques tion referred to some such specific agency, and not to negligence permitting it to op erate. of the instructions criticised in the brief, as [5] The company is not absolved from the consequence of its negligence in permitting the escape of gas from its service pipe to accumulate in the basement of the printing house, merely because gas also escaped and accumulated there from the broken main, although it should be conceded that it was (Supreme Court of Kansas. April 6, 1912.) not liable for the latter, and that the city was. The city might be responsible for the broken main and the gas company for the defective service pipes; and if these causes, operating together, caused the explosion the negligence of one would not excuse the other. "Where two or more parties, by their concurrent wrongdoing, cause injury to a third person, they are jointly and severally liable." Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; Kansas City v. File, 60 Kan. 157, 55 Pac. 877; Arnold v. Milling Co., 86 Kan. 12, 119 Pac. 373; McKenna v. Gas Co., 198 Pa. 31, 47 Atl. 990; notes in 29 L. R. A. 356 and 32 L. R. A. (N. S.) 809; 1 Thompson on Negligence, § 75; Louisville v. Schneider, 143 Ky. 171, 136 S. W. 212, 35 L. R. A. (N. S.) 207. (86 Kan. 832) PAINTER v. HINES.† (Syllabus by the Court.) 1. JOINT ADVENTURES (§ 4*)-ACCOUNTING. [Ed. Note.-For other cases, see Joint Ad- In such an accounting the defendant was allowed credit for expenses, and the plaintiff asked to open up the case and establish an exshould have been granted. Held, that his request pense account also. The jury were asked to find whether gas escaped in certain designated parts of streets about the intersection of Jackson and Seventh streets. They answered: "Yes; from Seventh street cistern." Complaint is made that the answer is evasive; but the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes [Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. § 7; Dec. Dig. § 5.*] Appeal from District Court, Jefferson for $2,000, one-half of which is given to the County. Action by G. L. Painter against J. D. Hines. Judgment for defendant, and plaintiff appeals. Affirmed in part, and remanded. B. F. Milton, of Topeka, for appellant. J. B. Larimer, of Topeka, and H. T. Phinney, of Oskaloosa, for appellee. defendant. In the fifteenth finding the de- While there is some evidence tending to show WEST, J. In July, 1905, the parties entered into a partnership agreement to purchase 8,280 acres of land in Ford and Hodgeman counties and to sell the same; the profits or losses to be divided equally. The plaintiff had a flourishing real estate business at Dodge City, employing a clerk and stenogra-sible in accordance with the contract," and pher and maintaining a well-equipped office. He had been discussing a sale of the land in question with its owner and was to have a commission, if sold, of $1,750. The defendant, who lived in northeastern Kansas, being at the plaintiff's office, was told of the land and the chance to purchase, and the two went to look it over and concluded to buy it, which they did. This was on July 7, 1905, and by the end of March, 1906, the land had been disposed of and the parties attempted a settlement which was blocked by the claim on the part of the defendant, Hines, that, when the land was bought, Painter had claimed to him that instead of $1,750 commission he was receiving $650, whereas in truth he had kept back $1,100, one-half of which Hines demanded, and, upon Painter's refusal to pay, the settlement progressed no further. In March, 1909, this suit brought for a partnership settlement and a recovery of $4,337.50 alleged to be due plaintiff. A protracted trial was had before the court and the case was taken under advisement, after which elaborate findings of fact, 16 in number, were made, followed by conclusions of law and a decree, awarding plaintiff $2,249.40, each party to pay one-half the costs. Each filed a motion for a new trial, and the plaintiff appeals, alleging error in the findings of fact and conclusions of law, asserting that a number of the former are contrary to the evidence and others unsupported thereby, and also complains that certain findings submitted by the plaintiff were refused.. was Many cases are cited to the effect that where each partner agrees to give his entire time to the business, and one withdraws or willfully abandons his work and leaves the burden on the other, a deduction should be made from his share of the profit. The abstract shows that counsel stated to the court that no claim would be made by the defendant for extra compensation on account of his alleged extra services, and, none being claimed or allowed, this question is out of the case. The rule allowing one partner a deduction from the other partner's profits on account of failure to do an equal share of the work does not, we think, apply to this case. In the course of the plaintiff's real estate business and dealings, he came upon the chance to buy this land, and the defendant entered into the project with him. The case is marked by the usual conflict of evidence. Having gone over the briefs, the abstract, and the counterabstract, and ob- [1] There is no basis for claiming that eiserved the claims of the parties and the vari- ther the plaintiff or the defendant entered ous details of the dealings between them and into a solemn compact to devote exclusive atthe positions now taken and arguments ad- tention to this one project to the utter abanvanced, we find only two matters demand- donment of everything else, although it aping serious attention. The twelfth finding is pears that the defendant, having, as he statto the effect that plaintiff's time and serv-ed, nothing else to do, did devote practicalices during the six months following the ly his exclusive time to it for a while. formation of the partnership were of the value of $500 a month, only one-third of which were devoted to the partnership matters, and that for the other four months the plaintiff should account to the partnership Insley v. Shire, 54 Kan. 793, 39 Pac. 713, 45 Am. St. Rep. 308, involved a bank firm which had suffered a serious loss through the fraud of its employés, and this was by the trial court laid at the door of one partner who |