Dissenting. — I dissent.
From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for negligence, defendant appeals.
Yiewing the evidence most favorably to plaintiff (respondent), the essential facts are:
December 15, 1938, defendant was furnishing electricity to plaintiff, which engaged in the business of manufacturing *541bricks. Defendant delivered electricity to plaintiff by means of wires supported on a line of poles running across plaintiff’s property. These wires of defendant were attached to plaintiff’s wires approximately three feet outside of plaintiff’s switch-house, which belonged to plaintiff together with all of the electrical equipment contained therein. On December 15, 1938, the switch-room, not being water-tight, allowed water during a heavy rain storm to penetrate into the switch-room bj running down the main conduit into the room, where the rain water reached the coil box, causing a short circuit and a resultant fire, which damaged the switch-house and equipment therein.
It may also be conceded that prior to the time of the fire plaintiff by telephone had requested defendant to discontinue the power service.
This is the sole question necessary for our determination:
Was plaintiff contributorily negligent?
This question must be answered in the affirmative. In the application which plaintiff made to defendant for electric power there was a provision that the service should be “in accordance with the rates, rules, and regulations of the” defendant. At such time one of defendant’s rules and regulations on file with the Railroad Commission of the State of California read as follows:
“RULE AND REGULATION
No. 26.
“Consumer Responsible for Equipment
For Receiving Electric Energy
*542The rule just stated became a part of the contract between plaintiff and defendant. (Riaboff v. Pacific Tel. & Tel. Co., 39 Cal. App. (2d) (Supp.) 775, 778 [102 Pac. (2d) 465].)
From the foregoing it appears that plaintiff agreed by its contract with defendant, at its own risk and expense, to keep in a good and safe condition all electrical apparatus in its plant including suitable buildings therefor. Since plaintiff in its brief concedes that the switch-room was not watertight and admitted water during a rain storm, which was one of the causes of the fire resulting in damage to plaintiff’s switch-house and equipment, plaintiff was contributorily negligent and may not recover damages from defendant.
For the foregoing reasons the judgment in my opinion should be reversed.
A petition for a rehearing was denied September 12, 1941. McComb, J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied October 14, 1941. Traynor, J., voted for a hearing.