A detailed statement of this ease is unnecessary under the view which we adopt of the controlling issue.' An automobile belonging to W. S. Langford, was wrecked through the joint negligence of appellee, McClung Construction Company, Inc., and L. E. Whit-ham. The car had been loaned by Langford to Whitham, and the accident occurred on a highway being constructed by appellee. Appellant, Langford Motor Company, succeeded to all the rights of W. S. Langford, including his cause of action against appellee. In response to special issues, the jury found that appellee was negligent, (1) in failing to provide and maintain a proper barricade at the culvert, (2) in failing to provide and maintain a burning light at the culvert, and (3) in failing to provide a watchman at the culvert. Each of said acts of negligence was found to be a proximate cause of the damages sustained to appellant’s automobile. The jury further found that Whitham was guilty of contributory negligence, (1) in failing to see and observe detour signs, and (2) in failing to keep a proper lookout. Each of these acts of contributory negligence was found to be a proximately contributing cause of the injury. Upon this verdict judgment was rendered for appellee.
The controlling question of law to be decided is whether the contributory negligence of Whitham, the bailee, is imputable to the bailor, and operates to bar a recovery. This exact question has been determined by the Supreme Oourt of this state in Texas & Pacific Railway Company v. Tankersley, 63 Tex. 57, which opinion was followed by the Court of Civil Appeals at El Paso in a case very similar in facts to the case before us in Munster v. Hexter (Tex. Civ. App.) 295 S. W. 245 (error dismissed). The holding of these cases is so clearly stated in appellee’s following counter proposition that we adopt it as our holding in this case: - “Where a bailor intrusts his property into the care, custody and control of a bailee and damage results to such property while in the hands of the bailee as the result of negligence on the part of a third party, and contributory negligence on the part of the bailee, the contributory negligence of the bailee is imputed to the bailor so as to bar recovery of bailor in his suit against the negligent third party.” In *3895 Tex. Jur. p. 1034, § 23, the same rule is announced.
It is claimed that the identical question here involved was decided contrary to the above rule by this court in Bertrand v. Mutual Motor Company (Tex. Civ. App.) 38 S.W.(2d) 417 (error refused). The question there decided was that -the bailor of an automobile who had no control over its operation by the bailee was not liable to a third person for injuries sustained on account of the negligence of the bailee. It is forcefully argued that there is no principle of distinction between the two questions. We need not discuss that question further than to notice that the distinction has been made by the Supreme Court of our state. It seems that appellant is correct in its contention that the decision in the Tankersley Case, supra, is contrary to the trend of modern decisions in other jurisdictions. These authorities would be highly persuasive had not our Supreme Court decided this question, but lose their persuasiveness when in conflict with that court.
The status of the law on the question here decided is so well stated in 3 R. C. L. pp. 146, 147, § 70, under “Bailments,” that we quote therefrom as follows: “But, while it appears to be very generally recognized that a bailor is not responsible to a third party for the negligence of the bailee ór his servants in respect to the bailment, there seems to be a sharp conflict among the cases as to whether or not the negligence of a bailee is imputable to the bailor so as to prevent the latter from recovering in an action against a third person for an injury to, or destruction of, his property. Until within very recent years the weight of authority, numerically at least, seems to have been in favor of the view that if the bailee or his servant, through negligence, contributed to the injury of goods in his hands, such negligence was imputable to the bailor, so as to prevent a recovery by him from a third person whose negligence, combined with that of the bailee, caused the injury. But later cases have manifested a decided trend in the contrary direction, so that now the scale may be said to have turned in favor of the other side of the proposition, namely that the bailee’s negligence is not imputable to the bailor so as to debar him from bringing an action for an injury to the subject of the bailment.”
It is not necessary for us to express any preference between the two lines of decision. Our Supreme Court has spoken, and if any change is to be made in the law of our state on this question, that tribunal alone should make it.
The judgment of the trial court will be affirmed.