however, as the appellant then proceeded to offer evidence the first exception must, as has often been held, be treated as waived. The second question arises on the rejection of the appellant's third prayer and on the granting of the appellee's second instruction. By the latter the jury were told that there was no legally sufficient evidence of the want of due care on the part of the appellee contributing to the happening of the explosion. The appellant's rejected third prayer left it to the jury to find whether there was such contributory negligence. The third question as presented by the appellant's fourth prayer and the appellee's third instruction as modified by the trial court raises the inquiry of proximate and remote cause-as to whether the escape of gas or the candle carried by the policeman was the proximate cause of the explosion. The fourth question relates to the measure of damages laid down in the appellee's fifth instruction. These questions will be disposed of in the order named.

688 1. Was there legally sufficient evidence to go to the jury to charge the appellant company with actionable negligence? There was no negligence in the act of shutting off the gas by merely turning the stop-cock in the riser: Brady v. Consolidated Gas Co., 85 Md. 642, 37 Atl. 263; and the whole question comes down to this: When the company confessedly received notice that there was a scrious leak in the vicinity of the house that was afterward damaged, did it use due and reasonable diligence to locate it? If it did not, then it was guilty of negligence; if it did, then it was not guilty of negligence. Whether it did or did not use due and reasonable diligence to locate the leak was a question of fact for the jury in the circumstances of this case, if there was any evidence before them tending to prove the negative. The instruction granted at the instance of the appellant and numbered 2 was framed upon the distinct theory that the appellant was bound to use due and reasonable diligence to locate the leak and therefore implicitly conceded that there was some evidence from which a jury might properly find the absence of such care and diligence. But aside from this, it was fairly for the jury to say, as a matter of fact, and therefore not for the court to determine as a matter of law, whether an inspection which failed to discover what other persons in the same situation as was the inspector, were aware of, was a due and reasonable inspection. There was obviously and notoriously an escape of gas in large quantities both before and after the company's inspection of Mrs. Clark's prem

ises was made. About that there can be no doubt. The company knew that it was claimed there was a leak in No. 519the house occupied by Mrs. Clark. It is not now pretended that the gas came from any other place than the appellee's house. Though the odor could be plainly noticed on the pavement the inspector failed to detect it even when he placed his face to the broken pane of glass in the cellar window. Why? Was it because there was no escaping gas in the cellar? The court could not say that, because if anything is plain and free from doubt in this case, it is indisputable that in the cellar of the appellee's house was just the 689 place and the only place where the gas was escaping. Then why did the inspector fail to discover it? That was a question obviously for the jury to answer. In answering it, it was for them to say whether the inspection as made was a reasonable one or not; and it would have been error had the court taken the finding of that fact away from them.

The second question relates to contributory negligence. The contention is that the failure of the appellee and the real estate agent in whose hands the house was put for sale to inspect the premises between October 29th, the day the meter was removed. and November 25th, the day of the explosion, was contributory negligence barring the right to recover, because had such inspection been made the escape of the gas "would have been discovered in time to have averted the explosion." But the appellee and his agent were under no obligation to assume or anticipate that there would be an escape of gas, and there was consequently no duty incumbent upon them to see that there was in fact no leak. There was, therefore, no negligence in their not doing that which it was not incumbent on them to do. How often would they be required to make such an inspection in order to repel the charge of contributory negligence? Until a definite answer can be given to that question it cannot be said that a failure to inspect between the dates named was any evidence of such negligence; and the court was clearly right in granting the appellee's second instruction and in rejecting the appellant's third prayer.

Now, as to the third question. The appellant's fourth prayer asserts the proposition that even though the company was negligent in not finding the leak after being notified that it existed, and was therefore responsible for the escape of the gas, still it is not answerable if the explosion occurred in consequence of a lighted candle having been brought by the policeman in con

tact with the gas. And this is supposed to be so on two grounds, viz.: 1. Because the escape of gas was not, but the lighted candle was, the proximate cause of the explosion; 2. Because it was contributory negligence on the part 690 of the policeman to carry a candle where the gas was escaping, with which contributory negligence the appellee was chargeable. The appellee's third instruction as modified by the court asserts the converse of the second proposition.

We need not go into a discussion of the abstruse and subtle question as to what is and what is not a proximate or a remote cause. As a mere metaphysical inquiry it presents a wide and interesting field for speculation and theory, but we are not called on to enter that field in this controversy. "The law is a practical science," said this court in Baltimore etc. R. R. Co. v. Reaney, 42 Md. 136, "and courts do not indulge refinements and subtleties, as to causation, that would defeat the claims of natural justice. They rather adopt the practical rule, that the efficient and predominating cause, in producing a given event or effect, though there may be subordinate and dependent causes in operation, must be looked to in determining the rights and liabilities of the parties concerned. . . . . But it is equally true that no wrongdoer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put into operation by his own wrongful act." In the last analysis much must depend on the facts of each particular case: 7 Am. & Eng. Ency. of Law, 2d ed., 381. That the escape of the gas was the efficient cause of the explosion cannot reasonably be disputed. If there had been no escape of gas there could have been no explosion. The escape of gas, if negligent, was a wrongful act, and it occasioned the use of the candle-it was the wrongful act which put into operation the other cause, and was consequently the efficient and predominant cause of the injury.

In most of the cases where negligence is the ground of action the question of proximate and remote cause has relation to and is involved in the inquiry whether there was contributory negligence. If the escape of the gas was due to negli gence on the part of the appellant, then the appellant would be 691 liable unless relieved by the contributory negligence of the

appellee or of some third party. It has long been a settled doctrine of the common law that for injuries negligently inflicted upon one person by another, there can be no recovery of damages if the injured person by his own negligence or by the negligence of another legally imputable to him proximately contributed to the injury. This doctrine, which was obviously borrowed from the Roman law, was, it is said, first clearly and distinctly applied by Lord Ellenborough in Butterfield v. Forrester, 10 East, 60; and numerous illustrations of its subsequent application are to be found in our own reports. It must, however, be observed that the contributory negligence which will defeat the right to recover is the negligence either of the injured party himself or of some other individual whose negligence may be legally imputable to the injured party. Now, there is no pretense that the appellee was guilty of negligence in taking the lighted candle to the place where the explosion occurred, because he was not there; and it comes to the question whether, conceding that the policeman was negligent, that negligence can be imputed to the appellee so as to defeat his action. The police officer was not the agent, the servant or the employé of the appellee and, of course, therefore, the appellee was not in any way responsible for his actions. The negligence of a third party who is an entire stranger to the individual injured cannot legally be imputed to the latter: Louisville etc. Ry. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968; Henry v. Dennis, 93 Ind. 455, 47 Am. Dec. 378; Lynch v. Nurdin, 1 Q. B. 29; Illidge v. Goodwin, 5 Car. & P. 190; Northern Pennsylvania R. Co. v. Mahoney, 57 Pa. St. 192; Jacksonville etc. Ry. Co. v. Peninsular Land etc. Co., 27 Fla. 157, 9 South. 661, 17 L. R. A. 33, with copious notes. There was no error in granting the appellant's third instruction as modified or in rejecting the appellant's fourth prayer.

The fourth and last question relates to the measure of damages. The court instructed the jury that the measure of damages was what would have been the fair and reasonable cost of restoring the house to its condition as it stood before 692 the explosion. This was clearly right: Brown v. Werner, 40 Md.

15.

Finding no errors in the rulings excepted to the judgment will be affirmed.

Judgment affirmed with costs above and below.

Am. St. Rep., Vol. 94-39

As to the Degree of Care Required of Gas Companies, see Heh v. Consolidated Gas Co., 201 Pa. St. 443, 50 Atl. 994, 88 Am. St. Rep. 819, and cases cited in the cross-reference note thereto. When the presence of gas in a building is due to the negligence of a gas company, and an explosion results from the negligent striking of a match by a stranger, the injured party may recover against either the company or the stranger or both: Koelses v. Philadelphia Co., 152 Pa. St. 355, 34 Am. St. Rep. 653, 25 Atl. 522. But if his tenant causes the explosion, the injured party cannot hold the gas company answerable: Creel v. Charleston Nat. Gas Co., 51 W. Va. 129, 90 Am. St. Rep. 772, 41 S. E. 174.

APPEAL OF REAVER'S EXECUTORS.

[96 Md. 735, 54 Atl. 875.]

WILLS-Attestation by a Witness by His Mark.-A mark made by a witness to a will as his signature is a sufficient attestation by him, his name being written for him by another person. (p. 611.)

John M. Roberts and Benjamin F. Crouse, for the executors.

735 SCHMUCKER, J. The record in this case presents for our consideration the single question whether a mark made by a witness to a will as his signature constitutes a sufficient attestation by him.

The will of Washington Reaver, late of Carroll county, when presented to the orphans' court of that county, was duly signed and sealed by him and was attested as follows:

"Signed, sealed, published and declared by Washington Reaver as and for his last will and testament, in the presence of us, who at his request in his presence and in the presence of each other, have subscribed our names as witnesses thereto.

"Witnesses:

CLAYTON H. HARNER.

his

“CHARLES X ENGLE.”
mark

After due proof of the custody of the will and of the fact that no other will of the testator had been found or was supposed to exist, each of the two witnesses made oath before the orphans' court that he saw the testator sign and seal the will, that he heard him pronounce and declare it to be his last will and testament, and that at the time of doing so he (the testator) was to the best of the witnesses' apprehension, 786 knowl