Kenny

Action for damages. Findings and judgment against defendant, who appeals from the judgment and an order denying a new trial.

The findings of the court, all of which have support from the evidence, are in effect: That plaintiff, through his wife, authorized in that behalf, applied to defendant, who was his family grocer, for a can of coal-oil; that defendant in attempting to fill such order carelessly and negligently delivered to plaintiff’s wife gasoline instead of coal-oil; that the wife |o£ plaintiff, in ignorance of such fact, filled the lamps with the article purchased and an explosion resulted, causing the destruction by fire of plaintiff’s house and personal property.

No issue as to contributory negligence is presented by the pleadings, notwithstanding which fact defendant insists that the record discloses such contributory negligence upon the part of plaintiff as to preclude recovery. “It is the settled rule in this state that contributory negligence is a defense to be affirmatively ' established by the defendant, unless it is shown or can be inferred from the evidence given in support of the plaintiff’s case.” (Green v. Southern Pacific Co., 132 Cal. 254 , [ 64 Pac. 255…