(dissenting).
My difference with my associates is on a point, narrow indeed but most substantial. It is the difficult one of whether the evidence tends to prove that defendant failed in its duty to warn deceased of the conditions surrounding and the dangers attending his enterprise on the night in question, and that such failure in law proximately contributed to his death. The divergence in view on the point is already thrown into definite outline, by the two opinions of my associates. A few words from me will, I believe, serve, while more sharply defining it, to point at once to the basis of, and the reason for, this divergence. My associates recognize that defendant was under a duty to warn deceased of dangers known to or in the exercise of reasonable care knowable by it but unknown to the deceased. They recognize, too, that for breach of this duty proximately causing injury the defendant would be liable. The main opinion goes on the theory that the danger to deceased arose out of the wholly unwarranted and unexpected act of the officers in shooting him, an act, they say, which the defendant in the exercise of reasonable care could not have anticipated., It goes too, on the ground that, the failure to warn deceased of the presence of the officers was not a proximate cause of the injury, that those in the car heard no commands to stop, and therefore would have acted no differently than they did act if they had known the officers were to be there. The concurring opinion goes on a different ground. It. asserts that the failure to give specific warning was not material because the proof shows that the deceased knew independently that officers would be there.
I can not agree with either of these views. I think it quite plain that the peculiar circumstances of deceased’s employment and of the activities in which he was engaged made it imperative that he be fully advised of the particular conditions and dangers attending their discharge. Defendants may not, I think, excuse its failure to fully advise him that officers would be there in force that night by the claim that, under all the circumstances, as matter not of fact but of law he must have known they would be. I cannot agree, either, that the unexpected shooting and not the failure to warn him that officers would be there that night to catch thieves was in law the responsible cause of his death. For while it is true that the officers apparently lost their heads and shot deceased without orders, it is also true that the circumstances of the trap and ambuscade made a very dangerous situation on these premises, and that if there was an attempt at flight some shooting might reasonably have been expected. As to these matters deceased should have been fully warned. The fact, if true, and whether it was true would be for the jury, that deceased’s companion did not hear the commands to halt his car or any of the shots does not establish as matter of law either that deceased did not hear them or that the failure to warn was not the proximate cause of their not having been heard. For, *520had they been advised that the officers would be there, they would have been looking out for such commands and would have stopped the car and otherwise acted accordingly.. The authorities make it clear that under the circumstances a duty of warning arose. Armstrong Co. v. Adair, 112 Tex. 439, 247 S.W. 848; Lipscomb v. Houston & T. C. Ry. Co., 95 Tex. 5, 64 S.W. 923, 55 L.R.A. 869, 93 Am.St.Rep. 804; Jellico Coal Mining Co. v. Morgan, 198 Ky. 635, 249 S.W. 780; Collins v. Pecos & N. T. Ry. Co., 110 Tex. 577, 212 S.W. 477, 222 S.W. 156.
I think it was for 'the jury to say whether the duty was insufficiently discharged and whether this was a proximate cause of the injury. I dissent.