The opinion of the court was delivered by
Hoyt, J.
During the progress of the trial of this case a wide range of testimony was allowed to be introduced, *425and in the instructions given to the jury the court attempted to cover the questions of law properly to be submitted to the jury upon the testimony thus introduced, Avithout in any Avay limiting such instructions to the issues made by the pleadings. Under such pleadings there was no question Avhatever raised as to the manner in Avhich the plumbing had been originally done, nor as to the make or construction of the water closet. The only allegation in plaintiff’s complaint in regard thereto was that such closet was out of repair. Hot only was there no attempt to allege any fault in the original construction, but, inferentially, there Avas an assertion that it was originally Avhat it should have been, by the statement in the complaint that connections Avith the water pipes Avere made in the usual manner. This allegation, in connection with the further one that the closet Avas out of repair, certainly could not furnish any foundation for proof that the closet Avas not of the proper make, or Avas in any manner in its original construction defectiA'e. The court, however, instructed the jury that, unless the best kind of closet knoAvn at the time Avas placed in the building by the defendant, the jury might from that fact alone, find him guilty of negligence. This instruction Avould have been too broad if Avithin the issues made by the pleadings, and, as the jury may have founded their verdict upon this particular instruction, the appellant Avould have been entitled to a reversal; and for the greater reason Avas the giving of such instruction prejudicial error when Ave take into consideration the fact that, under the pleadings, neither the court nor jury had anything to do Avith the character or kind of closet placed in the building.
Appellant, however, is not content to take simply a judgment of reversal. He claims that, under all the proof in the case, he Avas entitled to have the jury instructed to find a verdict for the defendant, and that even if it be held that, when he Avent into his defense, he waived his motion for a *426non-suit, made at the termination of the plaiutiff’s case, still he is entitled to the benefit thereof if, when the evidence was closed, the proof, taken as a whole, did not make a prima facie case for the plaintiff. We agree with this contention, and it therefore becomes necessary for us to consider whether or not there was sufficient proof of any fact which would have constituted negligence on the part of the defendant to have entitled the determination of such fact to be submitted to the jury. We have carefully examined all the proof offered, and are unable to find any sufficient proof, of the negligence of the defendant to establish a prima facie case. There is substantially no proof of anything tending in the most remote degree to show negligence on the part of the defendant, excepting the fact that on the occasion which formed the foundation of the complaint, and upon two other occasions, there had been leakage from this closet. But we are unable to see how these facts alone tended to show* negligence on the part of the defendant, when the fact is assumed, as it must be under these pleadings, that the closet was of an approved make, and properly placed in the building. Such proof, at most, could only show that at these particular times the closet was out of repair; and, in view of the evidence as to how these leakages may occur, it is doubtful whether the simple fact of such leakage was sufficient to show that fact. But, assuming that it was, there is nothing whatever to show that the defendant did not give it such attention and care as was reasonable under all the circumstances of the case, or that he knowingly allowed it to be out of repair for a single moment. We are not prepared to hold, as suggested by the respondent, that, in the ordinary use for domestic purposes of such a necessity as water, such use is of such a dangerous nature that if injury is occasioned thereby, it will be presumed to have been occasioned by the negligence of the user. On the contrary, we think that a com*427mon and ordinary usage of such a necessary element is a strictly lawful one, and the usual rule as to such matters will obtain, and the negligence resulting from injury have to be proven as a part of the plaintiff’s case when he seeks to recover damages therefor. But, even if such rule was applied to the facts in this case, it is doubtful whether or not the evidence was such that there was any question to submit to the jury. Taking all the testimony together, it appears that the defendant was not guilty of any negligence. On the contrary, it affirmatively appears therefrom that he had used ordinary care in attending to and managing the closet in question. It follows that the defendant was entitled to have had the jury instructed to find a verdict in his favor; and, as for that reason there should lie no new trial, the judgment will be reversed, and the cause remanded, with instructions to dismiss the action.
Scott, Anders and Stiles, JJ., concur.
Dunbar, C. J., dissents.