(dissenting in part).
In the writer’s opinion this court is not warranted by the evidence in holding, as a matter of law, that Shaw met his death as the result of operations on the part of the _ City of Munday, of a strictly governmental nature, as distinguished from a proprietary or corporate nature. There are at least two reasons for this view. The act of disposing of the carcass of a dog killed in the city, by taking it to a place near the city’s sewerage disposal plant for burial, is not necessarily and primarily referable to the “sanitation for public health” of the city. It is just as reasonably to be regarded as a part of the operations of the city in the removal and disposition of garbage. The courts of this state have adopted the view that the removal of garbage, including the disposition of bodies of dead animals, is a proprietary function. Ostrom v. San Antonio, 94 Tex. 523, 62 S.W. 909; City of Ft. Worth v. Crawford, 64 Tex. 202, 53 Am.Rep. 753; Id., 74 Tex. 404, 12 S.W. 52, 15 Am.St.Rep. 840; San Antonio v. Mackey, 14 Tex.Civ.App. 210, 36 S.W. *771760; Stephenville v. Bower, 29 Tex.Civ.App. 384, 68 S.W. 833; 14 A.L.R. 1473. This general view is stated in the note last cited thus: “In some jurisdictions it is held that the cleaning or sprinkling of streets, or the removal of garbage or refuse, is a corporate function to which the benefit to the public health is a mere incident, and that a municipality is liable for torts of its employees engaged in such work.” (Italics ours.)
The case of Ostrom v. San Antonio, supra, so holding and construing Ft. Worth v. Crawford, supra, to so hold, has often been cited and has never been expressly overruled. City of Waco v. Branch, 117 Tex. 394, 5 S.W.(2d) 498; Goodnight v. Wellington, 118 Tex. 207, 13 S.W.(2d) 353; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.(2d) 57.
It is more reasonable, I think to construe Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.(2d) 965, as distinguishable upon the ground that the removal of garbage is not -referable to sanitation than that with no discussion of the question it was intended to impliedly overrule said former decisions.
But, even if such act was a part of the sanitary measures of the city, the facts do not show, at least not conclusively, that such was the enterprise in which Shaw met his death. A city truck was stuck in the mud. Shaw’s connection with the transaction had to do only with getting the truck out, which had no necessary relation to the events leading up to the truck’s becoming stuck in the mud. Surely, the city had a proprietary interest in getting, the truck out of the mud wholly independent of the fact that there was a dead dog in it. The truck was out at the sewerage disposal plant. The occasion of its being there was its use in hauling the carcass of a dead animal. The City of Munday had the duty and responsibility of retrieving its property. That was the work which the city was doing by and through its servant Shaw when-the tort, if any, was committed.
If the operation in which the city was engaged was not exclusively proprietary, neither was it exclusively governmental. Is it pertinent to. inquire what is the governing principle of law where an alleged tort is committed while it is not referable exclusively to governmental .operations or proprietary operations, but to both? We think immunity from liability existed, if at all, because the operations were strictly governmental and solely for the public benefit. City of Amarillo v. Ware, supra; City of Fort Worth v. Wiggins (Tex.Com.App.) 5 S.W.(2d) 761; Ostrom v. San Antonio, supra; White v. City of San Antonio, 94 Tex. 313, 60 S.W. 426; City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517.
A discussion of the _ authorities dealing with this question are to be found in a note in 64 A.L.R. 1546, wherein it is said: “That a municipality .or county may be liable in damages for a tortious injury in or about a building which is used for both governmental and proprietary functions is shown by the following cases,” citing and discussing the cases. In the case under which the note appears it is said: “The fact that some of the activities centered in this building are exclusively of a purely governmental nature will not affect liability, when they are joined with business activities.” Bell v. City of Pittsburgh, 297 Pa. 185, 146 A. 567, 568, 64 A.L.R. 1542.
It is, therefore, my view that the judgment of the court below should be affirmed but for the further conclusion that as a matter of law no negligence was shown, or some defense was exclusively established.
The negligence relied on for recovery was (1) failure to warn; (2) failure to furnish Shaw with safe tools and appli-anees; and (3) failure to furnish him with safe premises to work upon.
As to the first ground of negligence there could be no recovery under the evidence because it shows conclusively that Harrell, the representative of the city, had no actual knowledge of the danger. In the absence of such knowledge there could be no negligence based alone upon a failure to give warning of such danger. This would seem to be elementary.
There was neither pleadings nor evidence to sustain a recovery on the ground of a breach of duty on the part of the city to furnish Shaw a safe place to work. It was alleged that it was the “duty of the city of Munday to furnish the said William Shaw a safe place and premises upon which to work; that the said defendant failed to do this, but allowed open holes to remain upon its premises which became filled with water and mud in such a manner that its trucks were unable to cross same in a safe way and manner and for the failure to so keep its premises free and clear of all hazards the defendant herein was guilty of negligence,” etc. It makes no difference what character or degree of negligence on *772the part of the city, if any, may have been the cause of the truck becoming bogged in the mud, the city had the right tó use its servants and agents to get it out. The causes of the truck becoming stuck in the mud could not possibly be a proximate cause of the death of the servant whose only relation to the transaction was an effort as an employee of the city to get it out of the mud. There was a total absence of any continuing effect of the causes of the truck becoming stuck. The assertion of this ground of negligence was precisely the same as would have been a contention that the defendant, was negligent because it required Shaw to get the truck out of the mud, the only alternative to which would have been to abandon the truck, at least temporarily. It should require no citation of authority to show that no recovery could be based upon such a theory under the undisputed facts.
The only other question is: Was there evidence to raise an issue of fact that the city was guilty of negligence in requiring or permitting Shaw to endeavor to pull the truck out of the mud with a tractor not equipped with a drawbar? There is no evidence to suggest any other defect in the tractor than the absence of a drawbar. That was not a defect per se, but only became so, if at all, by reason of the manner, of its use. The absence of a drawbar from the tractor, if regarded as a defect, and the danger in the use of the tractor without a drawbar, if that was the cause of the injury, were just as open and obvious to Shaw as to the City of Munday, or its representative. Shaw was a mechanic and had had experience with tractors. The representative of the city was not a mechanic and had had no experience with tractors. The fact that Shaw had never used a Farmall tractor could be of no controlling importance, since the’ undisputed evidence showed that the danger was one applicable to the use of all tractors, varying only in degree. For aught any evidence shows to the contrary, Shaw was as much the representative of the city in selecting the means of getting the truck out of the mud as was Harrell, the city secretary. If the city was guilty of negligence, Shaw was guilty of negligence. Under the undisputed evidence the city had no better means than Shaw had of recognizing the danger from which the injury resulted. Certainly, under the undisputed facts the city was under no greater duty to protect Shaw from the result of conditions as open and obvious to him as could possibly be to the city, than Shaw himself was. Particularly is this true where, as we think the evidence conclusively shows, the city was relying upon Shaw’s superior experience and knowledge.
Granting the general rule that the master is under a positive and nondelegable duty to furnish the servant with reasonably’Safe appliances, it is equally certain “that it is nevertheless competent for the master to impose on, and for the servant to accept, by contract or mutual understanding, the burden of inspeption, examination or even in some cases the maintenance, of the appliances or places he is required to use, such as he is competent to make.” 39 C.J. 32A, § 446; Payne v. Robey (Tex.Com.App.) 257 S.W. 873; Texas City Transp. Co. v. Winters (Tex.Com.App.) 222 S.W. 541; Pruitt v. Frost-Johnson Lumber Co. (Tex.Civ.App.) 161 S.W. 421; Maughmer v. Behring, 19 Tex.Civ.App. 299, 46 S.W. 917.
The writer, while disagreeing with the majority opinion upon the first question, concurs with it in the holding on the other question of liability, which alone requires that the case be reversed and judgment rendered for the defendant.