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I do not think that the duty resting on the respondent in this case can be excluded as against the male appellant, or anyone else injured in like circumstances, unless it be shown that there was a voluntary assumption of the risk of injury. That can only be in this case if there was proof that the male appellant appreciated the risk involved in leaving the pilot lights on and willingly took it. The record here does not support the defence of volenti. On the evidence, there was no conscious choice to leave the pilot lights on; rather, it did not enter the male appellant’s mind that there was a probable risk of fire when the pilot lights were in another room. There is thus no basis in the record for attributing an error of judgment to the male appellant. Nor do I think there is any warrant for finding—and this would go only to contributory negligence—that he ought to have known or foreseen that failure to turn off the pilot lights would probably result in harm to himself or his property from his use of the lacquer sealer in the adjoining area.
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