On Rehearing.
As shown by the original opinion in this case, we overruled appellant’s assignments based upon the actions of the trial court in refusing requested issues on contributory negligence, on the theory, among others, that the plea of contributory negligence, being general in terms, not specifying the particular acts of deceased constituting contributory negligence, the submission of the issue, in general terms, was sufficient.
The correctness of this statement of the rule is challenged by appellant, and, after investigating the matter, we have concluded that we erred in the holding. In Gulf, C. & S. F. R. Co. v. Maugham, 95 Tex. 413, 418, 67 S. W. 765, the court had before it on certificate the following question: “Question. “Where the facts in evidence relied on by the defendant to constitute contributory negligence are not specifically pleaded, and the court fails to group the facts, but charges. in general terms on contributory negligence, is the defendant entitled to have given a special charge, grouping the facts, and applying the law thereto?” The court answered the question as follows: “If the facts grouped in the appellant’s charge were admissible under the plea of contributory negligence, and the charge was correct, it should have been given.” This rule has been since followed in a number of cases, among others Stewart v. Galveston, H. & S. A. R. Co., 34 Tex. Civ. App. 370, 78 S. W. 979; St. Louis S. W. R. Co. v. Rose (Tex. Civ. App.) 93 S. W. 1105.
However, the error in the ruling above mentioned is immaterial, as we also held that the issue of contributory negligence was not raised by evidence, in that deceased entered the premises on the occasion in answer to a distress call from his brother-in-law; therefore could not be charged with negligence in exposing himself to danger.
But, aside from these considerations, it is undisputed that deceased was traveling through the community a total stranger, was ignorant of the condition of the power line, or even of its existence at that place, consequently, was utterly ignorant of the danger attendant upon entering and passing through the cotton field.
Contributory negligence can only be predicated upon failure to use reasonable care for one’s own safety to avoid the thing causing injury. If ignorant of the danger, and not being required to anticipate its presence, as in the instant case, no duty existed to exercise such care; hence, for this additional reason, the issue was not raised by evidence.
We have duly considered all of appellant’s grounds for rehearing, and, discovering no reason why our original opinion should be disturbed, the motion is overruled.
BOND, Justice.I have reached the conclusion that appellant’s motion for rehearing should be granted, and’ this cause reversed and rendered. On the original submission I expressed the opinion, which has since become a fixed conclusion, thg.t the record discloses that the deceased was, at the time of his death, a trespasser, entered upon the property of another without any right, but merely for his own purpose of purloining gasoline from the owners of the premises; that the owners of the premises, nor the one with contractual rights thereon, owed him any duty except to not intentionally or willfully injure him.
A person may use his property or contract in reference thereto as he pleases, so long as he does not willfully or wantonly injure another, unless ho owes some duty to the trespassing public. As was said by the Supreme Court, in Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S. W. 756, 757, 8 Am. St. Rep. 011: “The owner of real property is entitled to the exclusive use and' enjoyment of the same, and is not liable to others for injuries occasioned by its unsafe condition when the person receiving the injury was not at or near the place of danger by lawful right, and when the owner has neither expressly nor impliedly invited him there, or allures him by attractions or inducements exhibited or held out in some way calculated to lead him into danger without giving notice of the peril to be avoided. * * » Tim doctrine is established * * * that a trespasser or mere licensee who is injured by any dangerous machine or contrivance on the land or premises of another cannot recover damages unless the contrivance is such that the owner may not lawfully erect or use, or when the injury is inflicted willfully, wantonly, or through the gross negligence of the owner or occupier of the premises.”
In 1922, J. M. Carter, the owner in fee of the premises on which deceased met his death, executed to one H. Broadhead an easement, or right of way, for an electric transmission and distributing line, consisting of a variable number of wires and necessary or desirable appurtenances,' including towers or poles made of wood, metal, or other mate*911rial, on and across the owner’s premises. The rights under the easement, in due course, became appellant’s property. It was acquired by purchase without the intervention of the power granted to such corporations hy force of the statute of eminent domain or condemnation. Its contractual rights on and across the premises were independent of and, not controlled by the regulatory requirements of article 1436, R. 0. S. 1925, that “such lines shall be constructed upon suitable poles in the most approved manner and maintained at a height above the ground of at least twenty-two feet. * * * ” The rights and powers thus granted to appellant in the construction of its line are controlled by the covenants expressed in the easement contract voluntarily entered into hy the contracting parties. Appellant had the right and power of condemnation, had it seen fit to avail itself of the privilege, to enter upon the property and acquire the rights and'powers perforce of the statute, in which event it would have been compelled to maintain its poles at the height required by law.
Article 1436, supra, has no application to the facts of this ease. Appellant acquired no right or power under the statute, had not acquired its easement and right of way through eminent domain or condemnation, and the wires in question were not strung on a highway or road at the point of injury. Thus appellant’s liability for any act of omission or commission is dependent upon the common-law rules of negligence, and not negligence per se.
The deceased, Doe Franklin Webster, voluntarily and without invitation, express or implied, and without inducement, allurement, or promise of safety, made his way on private property, in the dark of night, with absolute lack of familiarity with the premises that he was invading. Can it be said that the owner of the premises owed him any duty? Can it be said that the owner’s gran-‘ tee of the easement right (appellant) owed him any duty? I think not, except to refrain from willfully and wantonly injuring him. The deceased was a trespasser on the premises.
The original opinion herein cites the case of Oil Belt Power Co. v. Touchstone, 266 S. W. 432, 439 (Court of Civil Appeals). In that case, the possessor of the land constructed an elevated water tank. Across the top of the tank there was a plank called a “runway,” and attached to the side of the tank was a ladder, thus provided to enable persons to go to the top of the tank and onto the plank extending .across it. The water tank had been in such use for about three years before the electric wires were strung above it. The deceased went up the ladder onto the plank and under the electric wires and was killed. The superintendent in charge of the premises had. instructed the deceased to go on the water tank in order to find some cattle belonging to the superintendent, his employer. Thus it would appear that the deceased was on the premises, and at the point of his injury, in the interest of one who had the right thereon. The court said: “If, as testified to by plaintiff, the hoy was told by the superintendent of the oil lease to go upon the tank to look for his [the superintendent’s] cattle, then it must follow that he was rightfully there, and not a mere trespasser.” In the instant ease, there was no authority given by the owner of the premises ; the owner had no knowledge of the deceased’s act, and the deceased was acting .contrary to such owner’s or occupant’s interest, purloining gasoline from his automobile. The deceased, in the middle of a rainy night, went across a muddy, freshly plowed cotton field, where there was no path and nothing to warn appellant that any one might be there, nor could it have been reasonably anticipated by a person exercising ordinary care that a person would be at such place at such time.
The original opinion also cites the case of Prairie Pipe Line Co. v. Dalton (Tex. Civ. App.) 243 S. W. 619. The cattle injured in that instance had previously been pastured on the premises in question, and had gained admission to said premises by means of gates which had been left open; the leakage in the pipe line, which caused pollution of the pond, had been going on for a period of several months, and thus caused the death of the cattle. The trespassing of cattle can hardly be compared with the trespassing of man. The pipe line company could well have anticipated that cattle would go to their accustomed range and place of drink, and should be fenced out rather than fenced in. As was said in Haralson v. Suzuki (Tex. Civ. App.) 300 S. W. 190, that the owner of a garden plot could not recover for damages done by trespassing mules, without showing that the crops were on land included by a lawful fence, or that the premises were in a territory where such stock were not permitted to run at large.
In view of the holding of our Supreme Court, in City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 51, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843, and Burnett v. Fort Worth Light & Power Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504, cited with approval in innumerable cases, there is no distinction between the owners of the premises and one who has lawful possession thereof as to the duty owed trespassers. In the Pitts Case, a city policeman climbed at night onto the roof of a privately owned building, to detect unlawful gambling in an adjoining house, and was injured by contact with an improperly insulated electric wire maintained by the city. The court said: “Plaintiff [Pitts] was invested with none of the legal *912rights which pertained to the ownership of the building or an interest therein. He went upon it for purposes of his own, and not in the interest of the owner. If he was not a trespasser, he certainly was no more than a licensee under an implied license. If he be regarded as such a licensee, this would not clothe him with any legal right in the use of the building. It would merely relieve him of any imputation of being an unauthorized trespasser. Though his act be regarded as lawful, or even praiseworthy, he nevertheless was using -the premises of another for purposes of his own, without any legal right in himself which entitled him to object to the condition in which the owners maintained them.” And so, in the Burnett Case, supra, a boy of 12 years, trespassing upon the roof of a building, to which he gained access by a stair and trapdoor, was killed by coming in contact with a wire which had become charged with electricity, through the neglect of the light and power company to comply with the penal ordinances of the city, respecting the insulation of their wires. The court held, in effect, that the negligence of the defendant light company must be a default in some obligation to the injured person, whether it consist in the omission of a statutory duty, or one required by the common law. In going out on the roof of the building, the boy was an intruder or trespasser, and from all of the circumstances the light company could not have reasonably anticipated that some trespasser would go out on the roof and come in contact with the electric wires.
It might be conceded, as recited in the original opinion, that “these cases [Pitts and Burnett] originated before the advent of power companies in this state, and prior to the enactment of statutes regulating their operation,” in so far as rural districts are concerned, but the advent of power companies and regulatory measures as to their operation were in esse in cities and towns at the time of these decisions. The rule announced in these cases is applicable alike to reciprocal duties and obligations imposed upon trespassers and public service corporations, whether in urban or suburban places.
In the instant case, appellee contends that deceased entered the premises in response -to distress calls from his brother and brother-in-law, and appellant contends that the three men went on a joint enterprise to purloin gasoline from the owner or possessor of the premises.
Appellant offered to show, by testimony of witnesses who were the first to view the scene, that on the morning the three bodies were found three sets of human tracks were seen leading from deceased’s automobile, across a lane, through the fence into the edge of the cotton field, up the edge of the field into the owner’s barn, out of the barn and across the field to the place where the bodies were found; that an oil can, containing a mixture of gasoline and oil, was found near the bodies, and in the tenant’s barn was an automobile, from which the plugs in its gasoline tank and crank case had been removed and were lying on the ground, and that all oil dnd gasoline had been taken. Thus relating in detail that to which there were no eyewitnesses — i. e., their purpose in going into the cotton field, and how they came in contact with the wire. This proffered testimony is in accordance with appellant’s allegation, that the three men got out of the car together and went into the field to steal. This is a conflicting issue and pertinent to show the reason for deceased’s unauthorized act; appellant’s proffered testimony would refute the idea contained in the original opinion, that deceased’s going upon said premises in answer to the distress calls of his companions “relieved him from the imputation of trespassing.” Appellant was denied the right to prove these facts, which the writer thinks was error.
As tending to show how far the recognized principles of relevancy go, I quote the following expression of the Commission of Appeals, in Pounds v. Minter, 13 S.W.(2d) 351, 352, approved by our Supreme Court, i. e.: “In cases depending upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived, and it is peculiarly proper that the jury should have before them every fact and circumstance, however slight, which may aid them in reaching a satisfactory conclusion. Greater latitude in the presentation of evidence must necessarily be allowed in cases of circumstantial than those of direct evidence. * * * ”
The original opinion herein states that, “The evidence is not disputed that deceased entered the premises in response to a distress call from Bowen Daniels, his brother-in-law, •which relieves him from any imputation of trespassing.”
One who has occupied the position of a trial judge on a district bench, as has the writer, is not unadvised as to the probative force and effect such testimony would have on a controverted issue , the testimony of the deceased’s wife, that her husband went to the cry of her brother in distress, calling “Doc,” “Doc, hurry up,” was most material to ap-pellees’ contention, and calculated to give to her husband a hero’s wreath. Contra, the jury should have been allowed to hear appellant’s said testimony, and their provincé was to accept or reject it. Under the trial court’s ruling, they were compelled to accept the widow’s testimony of the incident.
The deceased went upon the Carter farm solely for his own convenience, or the convenience of his companions, and for their benefit ; he was charged with knowledge that the premises he was invading was the private *913property of another. There is no evidence that he was following a path or roadway. Under the facts, there cannot be a serious claim, in my opinion, that the deceased was an invitee or licensee upon the premises when he received his injuries. Deceased and his companions were strangers in the community; they were not acquainted with the premises they invaded. Conceding that there does “exist a communal custom authorizing or at least tolerating, without let or hindrance, the entry and passage of persons through and over the inclosed pasture and cultivated lands of any one,” and that by force of it the status of deceased was that of a licensee, what duty did appellant fail to discharge? The Supreme Court, in Dobbins v. Missouri, K. & T. Ry. Co., 91 Tex. 60, 41 S. W. 62, 63, 38 L. R. A. 573, 66 Am. St. Rep. 856, answers the question thusly: “If there be no duty, the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby.” A licensee, if deceased was such, took the premises as he found it, and no duty devolved upon the owner or possessor thereof, after knowledge or notice, except to exercise reasonable care to safeguard trespassers from a new or sudden change in the premises. 16 Tex. Jur. p. 237 et. seq.
Deceased invaded the inclosed cotton field at midnight, on a dark, rainy, and stormy night. Thus, could it have been reasonably anticipated by appellant that the sagging wires would imperil his safety? Could a reasonable and ordinarily prudent person have anticipated such an occurrence as disclosed from this record ? The questions, in my opinion, suggest the answers. Especially is this true in the absence of knowledge by appellant of any changed condition. The electrical storm which precipitated the damage to the transmission line was local. The company had no knowledge of.the electrical disturbance, and nothing is disclosed calling for the necessity of an inspection of the line to avert the death of deceased and his companions. The prevailing inclement weather rendered the roads in the vicinity almost impassable; conveyance was made on horseback. Could it be contended, under such circumstances, that appellant owed a public duty to inspect its line at such time? Would one be guilty of negligence in failing to make such inspection under the attendant circumstances? The questions, in my opinion, suggest uncontro-vertible answers. There can be no negligence without a breach of duty; the existence of the duty and its measure depend, in most instances, upon the relation of the parties. What would constitute a breach of duty of a transmission electrical company to the owner of land across which the line passes would ordinarily be no breach of duty to a trespasser, or a licensee. The law’s only standard for measuring human conduct, with a view to determining its legal propriety or freedom from culpability, is the course of action that consists with that which a reasonably prudent person would have taken under similar circumstances.
This brings me to a consideration of the findings recited in the original opinion, that one George Ferguson wafe appellant’s agent, and through him appellant received notice of such impending danger in time to have forestalled any such catastrophe. The incidents in the trial complained of by appellant, by assignments and appropriate propositions, are, in the opinion of the writer, sufficient to reverse and remand this case, if, in fact, it should not have been reversed and rendered, for the reasons stated.
The record discloses that George Ferguson was a merchant at Bells. Some time before appellant’s acquisition of the power line, Ferguson’s father owned and operated a light plant, and George Ferguson worked for his father. Evidently he was familiar with electricity and the operation of electrical devices. Some testimony in the record is to the effect that, when anything went wrong in Bells, or at the substation, it was reported to George, and he would go down and “throw the switch.” A Mr. Cobb testified that Ferguson said he got $1 for throwing the switch in times of trouble at Bells. With this indirect testimony as to agency, the court permitted, over appellant’s objection, witnesses to testify that they notified Mr. Ferguson of the damage to the power line in question. If the testimony established Ferguson as appellant’s agent, at most such agency would be limited to throwing the switch at Bells. There is no proof in the record that such act at Bells would release the electric current from the wires at the point of injury. A notice to such an agent is, in my opinion, no notice to the company.
The record further discloses that the electric plant at Whitewright furnished the current for the lines in question at the time of the accident, and that the managing officers and employees at that plant had no notice or knowledge of the condition of the lines. The authority of Ferguson was questioned, and, as said in McGregor v. Hudson (Tex. Civ. App.) 30 S. W. 489, quoting from Mecham on Agency: “The authority of an agent, where the question * * * is directly involved, can only be established by tracing it to its source in some word or act of the alleged principal. * * * The authority of a private agent to represent his principal cannot ibe established by proof that he was generally reputed to be so authorized.” Appellant objected to the notice given Ferguson, as bearing on notice to the corporation, which, in my opinion, should have been sustained.
Appellant further complains of the action of the court in including in its charge, over its *914objection, special issue No. 9, which reads: “Was Doe Webster guilty of negligence in going into said field at the time and place in question in the manner that he did?”
It is evident that said issue embodies a general charge on contributory negligence of the deceased, in going into the place of danger. Appellant requested, in lieu thereof, issues segregating the separate and different ultimate facts of contributory negligence: (1) Special issue No. 4, as to the route chosen and followed by deceased and his companions; (2) special issue No. 7, as to the route chosen and followed by deceased; (3) special issue No. 9, as to deceased and companions going on the premises for an unlawful purpose; (4) special issue No. 10, as to deceased going on the premises for an unlawful purpose; (5) special issue No. 11, as to deceased going on the premises at that time of night; (8) special issue No. 12, as to deceased going on the premises at the place he entered; and (7) special issue No. 13, as to the foute deceased took in going across the field; also the corollary questions as to the proximate cause of the death of the three men.
Ample evidence was offered to prove these various specific acts and omissions, and appellant’s pleading would admit of the giving of the special requested charges. Appellant alleged: “Defendant further says that at the time Doc Franklin Webster sustained injury and immediately prior thereto, the said Bowen Daniels, Tommie Webster and Franklin Webster were each guilty of negligence which was the sole proximate cause of their several and 'collective injuries, but if not, were at least causes that caused or contributed to cause their injuries severally and collectively.”
This allegation was not excepted to by ap-pellee, and it may be regarded as tying into the further allegations of specific acts of deceased and his companions, viz.: That said Tommie Webster, Bowen Daniels, and Doc Franklin Webster, got out of said automobile, left the road, and undertook to cross a cultivated field over which it had its transmission line, in the nighttime, without the knowledge, consent, sanction, or invitation, either expressly or impliedly, from the owners of said premises, or any one in charge thereof, for their own purposes and conveniences, and, after accomplishing their purposes, and in returning to their automobile, they chose a route that was not used for a road or passageway, across an open field, and came in contact with the electric wire, and were killed, and on account of 'which the three were trespassers upon said premises, and that the light company was guilty of no negligence.
The writer is of the opinion that the pleading is sufficient to sustain the submission of appellant’s requested issues, and the determinative authority, showing error in refusing to give them, is that of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, 521, rendered by this court, which holds: “The statutes make it the duty of the court in trials by jury: First, to submit all the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling; and, third, to give such explanation and definition of legal terms as shall be-necessary to enable the jury to answer each issue.”
From the above, it will be seen that the statutes require submission of each set of facts constituting negligence, and forbid the submission of contributory negligence in one general issue; and, from the facts of the present case, appellant was denied the right given it by statute. Appellant in due time pointed out such omissions and defects in the submission of the case, and should have been accorded such rights.
The majority has concluded that appellant’s motion for rehearing should be overruled, and accordingly it is done. My interpretation of this entire record, as herein expressed, is that this case should have been reversed and rendered, and, so believing, I respectfully register my dissent.