Miller, Elam & Fesler, for appellant. Harding, Hovey & Wiltsie, for appellee. DOWLING, C. J. The appellant, which was the defendant below, was the owner of certain grounds and structures in the suburbs of the city of Indianapolis, one of which buildings was used for the purposes of cold storage. It was divided into rooms or compartments, which were rented to divers persons for the storage and preservation of meats and other articles by the use of cold air. The several buildings on the grounds were detached from each other, and separated by considerable spaces; one of them, quite remote from that used for cold storage, being occupied by appellant as its office. The appellant caused gas pipes to be run up the side of the cold-storage building, and through the lofts of the compartments rented to the tenants of these rooms to its office for the exclusive use of such office. The appellee rented and occupied one of the rooms in the cold-storage building for the storage of fresh meats. On February 13, 1895, the room so used by the appellee had, without his knowledge, become filled with natural gas, which escaped from the said pipes at some point on the said premises. The appellee, on entering the room on the morning of that day, and while it was yet dark, struck a match to light a candle. A violent explosion from the ignition of the gas instantaneously took place, and the appellee was severely injured thereby. He brought suit to recover damages for the injuries alleged to have been sustained, charging in his complaint that the accident was occasioned by the negligence of the appellant in so constructing and maintaining the gas pipes that gas leaked from them and escaped into the room rented by him. alleged that the appellant had notice of the defective condition of the said gas pipes, but that he had not, and that the accident and injury occurred without fault on his part. The answer of the appellant was a denial. The case was tried by a jury, which returned a general verdict for the appellee, with answers to a great number of questions of fact. The court overruled the motions of the appellant for judgment in its favor on the answers to the questions of fact and for a new trial. Judgment was rendered on the verdict, and the abattoir company appealed. He We are asked to reverse the judgment because of the supposed errors of the trial court in its rulings on the demurrer to the complaint and on the motions for judgment and for a new trial. The first objection taken to the complaint is that it does not appear that the appellant, as landlord, violated any duty which it owed to the appellee as its tenant. While it is true that in this state a landlord cannot be compelled to make repairs in the absence of an agreement to do so, and is not responsible for injuries resulting from such failure to repair, yet it is equally well settled that where he occupies a portion of the premises himself he is not permitted to use such parts in such manner as to injure his tenant. In the present case it is alleged that the appellant piped the premises for its own benefit solely, and not for the convenience or use of the appellee. It is perfectly clear that in so doing and in maintaining the gas pipes it was bound to use ordinary care to prevent the escape of gas from them, and consequent injury to the appellee. It is averred that the gas pipes laid down and maintained by the appellant for its own use were defective and leaking, and that this fact was known to the appellant. The appellant must be presumed to have known the dangerous qualities of escaping natural gas, and if, with the knowledge that it was escaping, it permitted such leakage to continue until an explosion took place, the injured tenant being without fault, the landlord would be liable. Peil v. Reinhart, 127 N. Y. 381, 27 N. E. 1077, 12 L. R. A. 843; Coupe v. Platt, 172 Mass. 458, 52 N. E. 526, 70 Am. St. Rep. 293. The appellant owed to the appellee the duty to use ordinary or reasonable care to prevent the escape of gas from its pipes in such quantities as to become dangerous to life or property. Kimmell v. Burfeind, 2 Daly, 155; Mining Co. v. Patton, 129 Ind. 472, 28 N. E. 1113, 28 Am. St. Rep. 203, and note; Trust Co. v. Perrego, 144 Ind. 350, 43 N. E. 306, 32 L. R. A. 146; Richmond Gas Co. v. Baker, 146 Ind. 600, 45 N. E. 1049, 36 L. R. A. 683; Citron v. Bayley, 36 App. Div. 130, 55 N. Y. Supp. 382; Gas Co. v. Crocker, 82 Md. 113, 33 Atl. 423, 31 L. R. A. 785; Hunt v. Gas Light Co., 3 Allen, 418; Kibele v. City of Philadelphia, 105 Pa. 41; Parry v. Smith, 4 C. P. Div. 325; 41 Law T. (N. S.) 93; Koelsch v. Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759. 34 Am. St. Rep. 653. If it was necessary to aver want of knowledge of the escape of the gas on the part of the tenant, we think the allegation on that subject was sufficient. The averment was "that appellee, on the day of his injury, without negligence, and not knowing that said gas had escaped and filled his room, and not knowing the danger of so doing, entered the room in which said gas was confined," etc. We are of the opinion that in cases of this character the doctrine of assumed risk does not apply, and that it is sufficient to allege that the injury occurred without contributory fault on the part of the appellee. Besides, nothing in the complaint shows that the appellee knew that the pipes were defective, or that any gas had escaped from them, and we cannot presume, from anything we find in the complaint, that he had such knowledge. The complaint was sufficient, and the demurrer to it was properly overruled. In the discussion of the motion for judgment for the appellant upon the answers to the interrogatories, we have been referred by counsel to no answer which necessarily overthrows the general verdict. If it appeared from an answer that at the time of the explosion the appellee was not the tenant of the appellant, or that the appellant maintained no gas pipes upon its premises, or that no leak existed in its pipes, or that the appellee, when he struck the light, knew that the room contained gas to a dangerous extent, or that the appellee was not injured by the explosion, such an answer would have been irreconcilable with the general verdict upon any theory, and would have overthrown it. But this is not the character of the answers upon which we are asked to reverse the judgment of the trial court. The plugging of a disused tin spout or pipe through which another tenant thought that escaping gas from outside the cold-storage building, or some other unpleasant odor, found its way into the room occupied by him, is relatively of no importance in this case. A plug in that pipe did not stop any leak in the gas pipes, and it was not the exercise of ordinary care to attempt to shut off the escaping gas by that expedient. We set out a few of the interrogatories relied upon by appellant, with the answers to the same: "(17) Did said Bryan [another tenant of the cold-storage building, occupying the compartment next to that held by the appellee] ask for a workman to stop a pipe in his room through which said Bryan believed gas might be coming into his room? Answer. Asked Mr. Alerdice [the president of the appellant] to have leak stopped." "(20) Did the abattoir company send one George Wonders to do such work as said Bryan wanted done, in response to his request? Answer. Yes." "(29) After said plugging, did the officers of the abattoir company believe that there was no further danger from gas? Answer. No evidence. (30) Did said officers have good reason so to believe? Answer. No evidence." "(46) Did any officer of the abattoir company have any means of knowing that there was gas in the particular room where plaintiff kept his meat on the morning of the accident to plaintiff? Answer. No evidence." "(51) Did the officers of the abattoir company go about the outside of its building and examine by the sense of smell to find escaping gas? Answer. Yes. (52) Upon such examination, was any place discovered near the buildings where escaping gas could be smelled? Answer. No evidence." These answers, so far from supporting the proposition that judgment should have been rendered for the appellant, strongly tend to sustain the general verdict. They show that a short time before the accident the appellant had notice that gas was escaping in the vicinity of the warehouse, and that the president of the company was notified to have "the leak stopped." They show what steps were taken by the appellant to protect its tenants from the dangers of escaping gas. The jury may have thought, and doubtless did believe, that these measures, both of investigation and prevention, were crude, and grossly inadequate, in view of the possible dangers involved. Interrogatories Nos. 29 and 30 were intended to elicit answers favorable to the appellant. The response of the jury that there was "no evidence" of the facts so expected to be proved was in each instance equivalent to a finding against the appellant. If, in answer to the forty-sixth interrogatory, the jury had said that "no officer of the abattoir company had any means of knowing that there was gas in the particular room where plaintiff kept his meat on the morning of the accident," we do not perceive how that answer would have aided the appellant. Its liability did not depend on notice of the fact that on the morning of the accident gas had accumulated in that room, but upon their previous knowledge that an insidious and deadly fluid had escaped at some point, probably upon their premises; that it was flowing in greater or smaller quantities by day and by night; that it was liable to penetrate any room in the building, and accumulate there, when the room was tightly closed, and to ignite and explode with terrific force upon contact with the flame of a match or candle. "(38) Was there gas in plaintiff's room when he opened the door on the morning of the accident in such quantities as to explode when fire came in contact with it? Answer. Yes. But door was opened by Thorne. (39) Could such gas have been readily smelled when the door was opened by any one giving attention to his surroundings? Answer. Yes." These answers prove no fact inconsistent with the general verdict. They establish the charge of the complaint that the room rented by the appellant to the appellee had become filled with gas, and that it was ready to explode upon contact with fire. They state that when the door of the room was opened by any one giving attention to his surroundings gas could readily have been smelled. But they disclose that the door was opened not by the appellee, but by a man named Thorne. Just what was meant by "giving attention to his surroundings" is not evident. It would seem to indicate something more than the ordinary care which a tenant is required to take in entering a room rented to him. The tenant was not required to make tests for the presence of gas or anything else. He had the right to presume that his room was free from noxious substances, and to enter it freely. His attention might have been fixed upon his business. His sense of smell, or ability to investigate odors, may have been obtuse. But if any conclusion favorable to the appellant could have been drawn from these answers, their effect was completely neutralized by the answer to the forty-fourth interrogatory, which seems to be directly contradictory of the answer to No. 39. The former was as follows: "(44) At the time the plaintiff lighted the match, could he have smelled gas if he had been giving attention to his surroundings? Answer. No." Even if the answer to the thirty-ninth interrogatory had been of controlling effect if standing alone, its inconsistency with the forty-fourth would have left the verdict unaffected. Dickey v. Shirk, 128 Ind. 278, 27 N. E. 733; Manufacturing Co. v. Fields, 138 Ind. 58, 36 N. E. 529; Railway Co. v. Heaton, 137 Ind. 1, 35 N. E. 687. All of the answers to the questions of fact submitted to the jury are easily reconciled with the general verdict without the aid of the evidence admissible under the issues which may be presumed to have been presented to the jury. Railway Co. v. Creek, 130 Ind. 139, 29 N. E. 481, 14 L. R. A. 733; Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210; Assurance Co. v. Wilson, 132 Ind. 278, 31 N. E. 938. The motion for a new trial presents but two questions: First, that of the sufficiency of the evidence to sustain the verdict; and, second, that of the correctness of the instructions referred to in the motion. A very careful reading of the record satisfies us that there was not a total failure of proof upon any issue in the cause. The knowledge of the appellant of the escape of gas, the sufficiency of the means adopted to discover and stop it to relieve the appellant of the charge of negligence, the knowledge or ignorance of the appellee of the perils of the situation when he entered his room,-all of these were matters of fact upon which there was more or less evidence before the jury. This being the state of the record, the verdict must stand. Neither the third instruction nor the seventh was erroneous because of its omission of the statement that the appellee could not recover unless he proved that he did not voluntarily assume the risk arising from the escape of the gas. The question of assumption of risk was not involved. The eighth instruction requested by the appellant contained these words: "Unless the defendant had some superior knowledge or means of knowledge not possessed by the plaintiff as to the condition of things in his room, it was under no duty to make any changes with respect to gas about its premises." The duty of the appellant did not depend upon its superior knowledge or means of knowledge as to the condition of things in appellee's room. If it had notice that gas was escaping from its pipes on its premises in the vicinity of the building used for cold storage, in which appellee had a rented room, and could foresee that it was likely to enter that building and appellee's room, its duty to its tenant required that it should find the leak and stop it, or cause the gas to be shut off until the leak could be found, or to take such other precautions to prevent injury to its tenant as a person of ordinary prudence dealing with so dangerous an agent as natural gas would adopt. The modifications of instructions Nos. 12 and 13 by the court were reasonable and proper. Without such corrections, these instructions misstated the law, and did not fairly present the issues to which the law so stated was intended to apply. We find no error in the action of the court in refusing to give these instructions as presented, or in modifying them as it did. There is no error in the record. Judgment affirmed. (159 Ind. 329) NOONAN v. BELL et al. (Supreme Court of Indiana. Oct. 15, 1902.) APPEAL-EXCEPTIONS IN GROSS. 1. Where defendants separately demurred to the complaint for want of facts, the overruling of both demurrers involved two rulings, and an exception "to which ruling," not directed against a designated ruling, raised no question. Appeal from circuit court, Blackford county; E. C. Vaughn, Judge. Action by William Noonan against George R. Bell and another. From a judgment for defendants, plaintiff appeals. Affirmed. Cranor & Mann and Fargo & Kegerreis, for appellant. Cantwell & Simmons, for appellee Trentman. Enos Cole and W. H. Honey, for appellee Bell. GILLETT, J. This action was instituted by appellant to recover damages from appellees. The latter, by their respective counsel, severally demurred to the amended complaint for want of facts. After setting out the several demurrers mentioned, the record contains the following entry: "And the court, after being fully advised in the premises, sustains the separate demurrer of each defendant, to which ruling of the court the plaintiff at the time excepts." Each demurrer presented the question as to the sufficiency of the amended complaint as against the demurring defendant. The entry therefore involves two rulings. An exception must be directed against a designated ruling. It is not competent to reserve exceptions in gross. City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Walter v. Walter, 117 Ind. 247, 20 N. E. 148; Johnson v. McCulloch, 89 Ind. 270; Leyner v. State, 8 Ind. 490; Wilson v. Wolfer, Id. 398; Elliott, App. Proc. §§ 787, 789. The assignments of error are all predicated on said rulings on demurrer, and It therefore follows that there is no basis for an inquiry into the correctness of the Judgment below. Judgment affirmed. 1. See Appeal and Error, vol. 2, Cent. Dig. § 1622, (159 Ind. 562) DUDGEON v. BRONSON et al. 1 (Supreme Court of Indiana. Oct. 15, 1902.) WAY OF NECESSITY-INCONVENIENCE-SE LECTION-USE. 1. A way of necessity, 16 feet wide, recognized and in use for 25 years, cannot be made wider because the soil is so wet and soft for a large portion of the year as to render its use inconvenient and difficult without the additional strip. Appeal from superior court, Allen county; W. J. Vesey, Judge. Action by Mary C. Bronson and another against Charles H. Dudgeon. From a judgment in favor of plaintiffs, defendant appeals. Transferred from appellate court under section 1, Acts 1901 (Acts 1901, p. 590). Reversed. W. & E. Leonard, for appellant. E. V. Harris, for appellees. DOWLING, C. J. Mary C. Bronson, the plaintiff below, with whom was joined her husband, sued the appellant for a way of necessity over lands owned by him. The court overruled a demurrer to the amended complaint. A special finding of facts was made, and conclusions of law were stated thereon. The appellant excepted to each conclusion. Motions for a new trial and for a venire de novo were also made and overruled. These decisions of the court are assigned for error. The complaint shows that in 1875 one Stone owned two tracts of land in Allen county, one of which contained 160 acres, and the other 40 acres. Stone sold the larger tract in 1875 to one Benninghoff, and in the same year conveyed the smaller to the appellee Mary C. Bronson. The 160-acre tract bordered upon a highway, but the 40-acre tract had no outlet. The appellant is a remote grantee of Benninghoff. The successive, owners of the larger tract have recognized the right of the appellee to a way over the same to the public highway, and such way is in use by the appellee, but, on account of the character of the location of the said way, which is low and wet for a large part of the year, and the nature of the soil, which is soft, the appellee cannot pass over the said way without inconvenience and difficulty. In its present condition, the said way is useless to the appellee for ingress and egress to and from her land, and an additional strip 4 feet in width, running the whole length of said way, is required to render said way passable and useful. The appellant refused to let the appellee use such additional strip, and has forbidden her to enter upon the same. The relief prayed for is that the width of the way be fixed at 20 feet. The case stated in the complaint is one in which the appellee was originally entitled to a way of necessity. Stone owned both the outer and larger tract bordering on the highway, and the inner and smaller one, which had no outlet. If the smaller tract was first sold, the right of access to the highway over the lands of the grantor was appurten- 'Application for extension of time for filing petition for rehearing denied, 65 N. E. 752. 10 necessity. The demurrer to the complaint should have been sustained. The other errors assigned need not be considered. For the error of the court in overruling the demurrer to the complaint, the judgment is reversed, with directions to sustain the demurrer, and for further proceedings in accordance with this opinion. (159 Ind. 419) GUNN et al. v. HAWORTH et al. 1 (Supreme Court of Indiana. Oct. 16, 1902.) TERM-TIME APPEAL- ASSIGNMENT OF ERRORS-OMITTED PARTY-VARIANCE IN SURNAME INITIALS. 1. Under the direct provisions of Burns' Rev. St. 1901, § 647a, a term-time appeal may be taken by a part only of co-parties against whom a judgment has been taken, without naming in the assignment of error a judgment defendant not appealing. 2. Rule 6 of the supreme court provides that the assignment of error shall contain the full name of all the parties. A judgment for costs was taken in the circuit court against the petitioners for a free gravel road. Among others, the judgment was against Henry N. Gwinn, Obed A. House, and William O. Rich. The assignment of errors in the supreme court was entitled "Henry N. Gunn, O. A. House, W. A. Rich," and others properly named as in the judgment. Held, that the assignment of errors, standing in the supreme court as a complaint, which must always contain the Christian and sur name of each party, the appeal was subject to dismissal for the variance in the names Gwinn and Gunn, and the use of initials for Christian names. Appeal from circuit court, Hamilton county; John F. Neal, Judge. Proceedings by Henry N. Gunn (or Henry N. Gwinn) and others for a free gravel road. From a judgment of the circuit court reversing a judgment of the board of commissioners against the remonstrators, Cassius Haworth and others, petitioners appeal. Appeal dismissed. Christian, Christian & Cloe, for appellants. Shirts & Fertig, for appellees. HADLEY, J. Appellees filed before the board of commissioners of Hamilton county their petition for the construction of a free gravel road under the act approved April 8, 1885 (Acts 1885, p. 162), and such proceedings were had thereunder that appellants and one Mary Likens seasonably filed their Joint remonstrance against the viewers' report, for the causes "(1) that the viewers' report is not according to law; and (2) the land of the remonstrator is not benefited." The remonstrance was determined adversely to all of the remonstrators, and they all joined in an appeal to the circuit court. The remonstrance was submitted to trial by jury, and resulted in a verdict for the petitioners, and a judgment for costs against "Henry N. Gwinn, John Siler, Obed A. House, David F. House, James M. Beck, William O. Rich, Samuel Shively, and Mary Likens," these being all the remonstrators. A joint motion Motion to reinstate denied. for a new trial was made and overruled, and the remonstrators appeal. The assignment of errors in this court is entitled as follows: "Henry N. Gunn, John Siler, O. A. House, David F. House, W. A. Rich, James M. Beck, and Samuel Shively, Appellants, v. Cassius Haworth and About Seventy Others (the Christian Names of Eighteen of Whom Being Given by Initials Only), Appellees." Appellees claim the assignment is insufficient to challenge the judgment of the circuit court: (1) Because Mary Likens, one of the joint judgment defendants, as shown by the record, is not made as an appellant; and (2) because the Christian names of 2 of the appellants and 18 of the appellees are given only by initial letters; and (3) because Henry N. Gunn, in the assignment, is not idem sonans with Henry N. Gwinn, the judgment defendant; and that for each of these reasons the appeal should be dismissed. With respect to the first ground for dismissal, the record shows that this is a termtime appeal, and governed by section 647a, Burns' Rev. St. 1901, which provides that part, only, of co-parties against whom a judgment has been taken, may appeal without making other co-parties parties to the appeal, and in such case it is unnecessary to name those not appealing in the assignment of errors. See Shuman v. Collis, 144 Ind. 333, 43 N. E. 257; McKee v. Root, 153 Ind. 314, 54 N. E. 802. Nothing appearing to the contrary, this court presumes that Mary Likens was omitted from the assignment of errors under the authority of the above section. The second ground presents a more serious question. To overrule this ground requires us to hold that the use of initial letters for Christian names is a sufficient designation and identity of the parties to an action. And this we cannot do. It was said by this court very early in its history that "there is no principle more certainly and satisfactorily settled than that in all actions the writ and declaration must both set forth accurately the Christian and sur name of each plaintiff and each defendant." Hays v. Lanier, 3 Blackf. 322. The same doctrine has always been, and is still, the law of this state, except as may be otherwise provided by statute. It has also been decided a great many times that the assignment of errors is the appellant's complaint in this court, and that the full names of all the parties to the judgment complained of must be set out in the title or body of the assignment. Rule 6 of this court (55 N. E. iv); Burke v. State, 47 Ind. 528; Thoma v. State, 86 Ind. 182; Snyder v. State, 124 Ind. 335, 24 N. E. 891; State v. Hodgin, 139 Ind. 498, 39 N. E. 161. It is said in Burke's Case, "The assignment of error in this court is like a complaint in the court below, in which the full names of the parties must be given;" and in Hodgin's Case, "Another and indispensable require |