(dissenting).
Appellee suffered the damages sought against appellant for the death of her son, Bowen Daniels, in consequence of his own negligence and his unauthorized act of intruding on premises on which he had no lawful business, and due to no fault of appellant, either statutory or in common law. The majority of the court, in this and in the Webster Case, extends the liability of an industrial and. utility plant further, and exacts of it greater duties and responsibilities to a -wrongdoer trespasser, or even to a licensee, than any case heretofore sanctioned by any court in this state, so far as I am able to find, and further than I can consent to go.
The condition of.the line was due to an act of Providence — a stroke of lightning. Appellant did not know of its condition, had no notice of the electrical disturbance, and was not put to an election to inspect its line or place guards and watchmen in the cotton field, under the circumstances, to avoid the consequence incident to the acts of a negligent wrongdoer. Deceased and companions left their light-equipped automobile in darkness, went across the inclosed premises of another, into a tenant’s barn, took property therefrom under circumstances of theft, stealthily left the barn in an opposite direction, to avoid detection, and were killed. They were not entitled to the protection of the owner or occupier of the premises, or of appellant, who had a vested right therein under a contractual easement or right of way. My conclusions reached in the Webster Case are applicable here, and fortified by disclosures in this record, that appellant had no notice of the condition of the line, was not put to an election to inspect or place a watchman to guard against danger, and that George Ferguson was not appellant’s agent.
The record reveals that, on ¿ Monday morning about 7 o’clock, a bolt of lightning struck appellant’s electrical line. Some of the witnesses characterized the disturbance as a severe electrical storm; others as a single bolt of lightning. It is undisputed that the storm was local, discernible only by those in the-immediate vicinity of the damaged transmission line. It was not known at Bells or-Whitewright. Nothing is disclosed in the record to justify a conclusion that the company had notice of the destructive element or the injury done to its line, until after the accident, which occurred about 11 o’clock in the-evening of the same day.. The Sunday and Sunday night preceding the accident, and the-Monday and Monday night of the accident, were cloudy and rainy; the cotton field in question was situated in a black land country ; roads in the vicinity were almo.st impas*183sable, and travel was made on horseback on account of the rain and mud. Under such circumstances, can it be concluded that there existed the duty and responsibility of the electrical transmission company to foresee that of'which it was ignorant, and to avoid the consequences of the acts of a negligent wrongdoer by failing to anticipate the presence of danger? Brought down to the fundamental fact, “that negligence can only be constituted by the failure to discharge a duty,” the writer cannot see how any recovery can be sustained against appellant for the death of Bowen Daniels.
The undisputed testimony is that deceased and his two companions were 'trespassers to whom appellant owed no duty, save and except to not willfully injure them, and to refrain from doing" that which would be tantamount to a willful injury. There is no contention made that any permission, express or implied, was given the men to enter the inclosure, or that there was a path or roadway across the field to indicate a possible right of license for one to enter the inclosed premises. Frog Jackson was the occupier of the premises at the time; his home was visible from the point where deceased’s automobile was stranded in the road; deceased and his companions turned out the automobile lights, took an oil can to get gasoline, and in the dark went across a lane, through two wire fences into the edge of the cotton field, up the edge of the field toward Frog Jackson’s home, and into his barn, and then left the barn by a different route in a direction away from the house, to the place where the bodies were found, and the oil can was found near the bodies.
Appellant pleaded that the three men went on a joint enterprise to steal gasoline from the owner or occupier of the premises, and were guilty of contributory negligence in entering upon the premises and in failing to carry a light, which was done for the purpose of theft, without the knowledge, consent, invitation, or sanction of the owner or occupier of the premises, and that they went without requesting a guide, and in leaving the barn chose a route' in a direction opposite from the occupier’s home. The reason for such actions is evident; i. e., they were taking that to which they had no right. In an effort to sustain the specific acts of contributory negligence alleged, appellant offered to show, by testimony of witnesses, that Frog Jackson, tenant and owner of an automobile in the barn, was at home on the night in question; that deceased and his companions did not come to his house and did not make inquiry for gasoline; that the plugs in the automobile tank and crank case had been removed and were lying on the ground; that all oil and gasoline had been taken; and that an oil can, containing a mixture of gasoline and oil, was found near the bodies. Appellant was denied the right to prove these facts or to have the jury- pass upon requested submitted special issues presenting the different phases of contributory negligence.
The record discloses that the witnesses Frog Jackson, a Mr. Bailey, and Tom Wells, each lived in view of the transmission line, at the point where the lightning struck the pole; that Frog Jackson’s home was visible from the deceased’s automobile. Frog Jackson, as did Mr. Bailey and Mr. Wells, knew that lightning had struck the pole and that the wires were down, and had deceased secured permission to invade the premises, rather than go stealthily in the darkness, his death, and that of his companions, could have been prevented; or,.had deceased carried a light or lantern to illumine his pathway, he could have detected the danger and thus avoided the injury. His failure to exercise such care for his own safety is, in the opinion of the writer, contributory negligence; at least, they are matters for the determination of a jury. He may have been ignorant of the danger attendant upon entering and passing over the cotton field, but, if by the exercise of care of an ordinarily prudent person deceased could have known of the condition of the line, and notwithstanding that proceeded to activate the danger by traversing a route which led directly into the damaged line, which was known to those who could have imparted knowledge of same, he should not escape the consequences of his own negligence.
Appellant was deprived of his defense, both in proof and by the court’s refüsal to give its pertinent submitted issues on contributory negligence, which the writer concludes was error, and amounts to disallowing appellant’s day in court.
Appellant is entitled' .to have the alleged specific acts of contributory negligence, on the part of deceased, which are raised by the evidence, submitted to the jury as a defense. The adjudication of appellee’s alleged negligent acts of appellant does not dispose of appellant’s requested issues on contributory negligence. '
' Appellant sought to have the jury to determine the issue as to whether the company had notice of the sagging transmission line, and submitted appropriate special issues bearing on appellant’s knowledge that the line was low at the place where Bowen Daniels sustained his injuries. The requested issues are embodied in the majority opinion. There is no evidence disclosed in the record, as the writer interprets it; authorizing the submission of an issue of notice of the condition of the line, as having been visited upon appellant, or that notice to George Ferguson, appellant’s alleged agent at Bells, was notice to the company.
The record discloses that George Ferguson was the ágent of the Texas Power & Light Company at Bells, and not an agent of appel*184lant; Clyde Craig testified that he, as local manager of the Texas-Louisiana Power Company at the time in question, employed all workmen for appellant at Bells and White-wriglit; that George Ferguson was not in the employ of appellant, but was an employee of the Texas Power & Light Company. H. O. Green testified that he, as the division engineer in charge of the Texas Power & Light Company’s transmission lines and substations in Grayson county, knew that George Ferguson worked for the Texas Power & Light Company at the time in question, and not for appellant. This positive testimony, as to the agency of George Ferguson, is uncontradicted by competent and probative testimony. Ap-pellee offered testimony by a Mr. Childress that George Ferguson was informed by him of the condition of the line; he further testified that he did not know whether Ferguson worked for appellant or for the Texas Power & Light Company. There is no positive testimony that Ferguson was doing work for appellant. The record reveals that, prior to appellant’s acquisition of the distributing electrical system at Bells, George Ferguson was employed by other electrical companies then engaged in that village, and that he was the only one there who knew anything about electrical appurtenances; thus complaint was made to him and he either adjusted it or called Whitewright, from which the electricity in Bells was transmitted. If such indirect testimony of agency or notice given by Childress to George Ferguson raises an issue of notice to the company, eontraire to the positive testimony of said managing officers that Mr. Ferguson was not appellant’s agent, then appellant was deprived of its right to have its affirmative defense submitted, as requested in said special issues. Where there is evidence to sustain such finding, and request is made, as here, that the issue of notice be submitted, it is error for the trial court to refuse the requested charges.
The theme of the entire record is that ap-pellee’s suit is one based on specific 'acts of negligence. The proof is eviderit that the condition of its line, causing Bowen Daniel’s death, was due to a cause beyond appellant’s control; appellant had no notice of its condition, and, under the attending circumstances, it was not put to the task of inspection, or of putting ra watchman to guard against the unusual, unexpected, and unanticipated occurrence. There can be no presumption of negligence casting upon appellant the burden to extricate itself by showing that it exercised reasonable care. In my judgment, the. doctrine of res ipsa loquitur, has no application to the facts in this record. The authorities recited in the writer’s dissenting opinion in the Webster Case, against this appellant, are applicable here.
There is no other conclusion that I can reach in this case than that the. judgment of the lower court should be reversed and here rendered for appellant. Thus believing, I respectfully dissent from the majority holding.