This is an appeal from a judgment of the District Court of Ector County sustaining an exception to the petition and dismissing the case.
The suit was by Wanda Presley, a minor, through her father as next friend, to recover damages for personal injuries sustained in a collision between a car in which she was riding and a fire truck operated by the City of Odessa and answering a fire call on the occasion of the accident. The accident occurred at the intersection of Pearl and Grant Streets in the City of Odessa. The fire truck was going south on Grant and the automobile west on Pearl. There was a traffic light at the intersection and the automobile at the time of the accident had the green light and the red confronted the fire truck, according to the allegations contained in the petition. There were various grounds of negligence alleged such as excessive speed, a lack of control, failure to keep a proper lookout, failure to give warning signals, defective horn or warning devices, etc. As we understand plaintiff's position they concede ordinarily ordinary negligence in such a case will not support a recovery, but they further alleged the city failed to install a master switch to control fire lane signals at street intersections and especially at the intersection involved in this suit, and so failed notwithstanding it had been warned and notified of such a condition, and that such failure and condition constituted a nuisance; that such failure was negligence and the proximate cause of the injuries and damage, and was without due regard to the safety of the public and to Wanda Presley; that the operation of the signal lights in -the manner pleaded and the failure to install a master switch and the operation of the fire truck in the manner set out all combined to create a dangerous physical hazard, condition and nuisance, and the failure to abate such nuisance was negligence and a proximate cause, and such failure after such notice and warning was without due regard for the safety of plaintiff and were all arbitrary acts in disregard of the safety of the plaintiff. On oral argument it was asserted these last mentioned allegations and facts under the provisions of law applicable in such cases constitute the crux of the case and thereon it hinges.
Three points of error are briefed, the first of which is the Court erred in sustaining defendant city’s so-called special exception. The exception is as follows, to-wit:
“Defendant specially excepts to Plaintiff’s Fourth Amended Original Petition in its entirety and says that it is apparent upon the face thereof that Plaintiffs have no cause of action herein against this Defendant, since the facts, as alleged in the Petition, show conclusively that any of the acts of omission or commission charged against the Defendant in this case were entirely in connection with governmental function of the Defendant, and this Defendant therefore prays that this exception be sustained and that the Plaintiffs’ suit be dismissed.”
Plaintiffs’ position is the exception is a general demurrer. Rule 90, Texas Rules of Civil Procedure abolishes general demurrers and provides that any defect, omission or fault in the pleading shall be specifically pointed out. Rule 91 requires that special exceptions point out intelligibly and with particularity the insufficiencies of the pleadings excepted to. In the instant case the petition sets out plaintiffs’ complaints with exactness and great particularity and the exception complains of no deficiencies but on the contrary asserts the facts pleaded show conclusively that every act of commission or omission of the defendant were entirely in connection with the governmental function of the defendant. In other words the sufficiency of the petition is conceded, but it is said the facts do not constitute a cause of action and do not fix liability because they conclusively show all the acts complained of were done in the performance of a governmental function. Plaintiffs were not cut off from any right but by their failure to undertake to amend *295conceded they could not further plead. The rules supra are in the interest of justice and if no injustice has been done the error complained of, if error, would be harmless. If defendant’s position be correct otherwise then the error, if it be error, is harmless. Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983. This is somewhat' like a judgment rendered on a motion for a summary judgment, or a trial to the Court on an agreed statement of facts, and it would be an idle thing to reverse the case on an error of procedure where no injury is done and the agreed facts would not support a judgment to the contrary.
The other two points are, that the Court erred in sustaining the so-called special exception in effect holding that the accident resulted from the exercise of a governmental and not a corporate function, and in sustaining the exception based on the contention the petition showed on its face the city was acting in a governmental capacity and, therefore, not liable, whereas, under the pleaded facts such might have been the case and the city still liable.
These points are predicated, if we understand them correctly, primarily on the propositions the operation of. the signal lights without a master switch to signify and give notice of the use of the street as a fire lane and the flashing of the green light in front of the car in which Wanda was riding constituted a nuisance on the street, and that under the provisions of Art. 801, subdivision (N) Vernon’s Ann.P.C., the failure to install the master switch under the alleged facts was arbitrary and without due regard for the safety of the public, and of Wanda, to her injury. It is our opinion these propositions have been decided adversely to the contention of the plaintiffs in the case of Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499, no writ history, in accordance with the generally ■ accepted rule laid down by the authorities that the operation of signal traffic lights is a govern-, mental function and cities are not generally liable for the negligent operation thereof. The nuisance question was there presented, but the provision of the Penal Code is not discussed.
We think the provisions of the law are not susceptible to the application sought to be made. The statute accords the right-of-way to the emergency vehicles there named while being operated as such with the proviso emphasized by the plaintiffs and relied upon by them, that the same “shall not protect the driver or operator of any such vehicle or his employer or principal from the consequence of the arbitrary exercise of this right to the injury of another”. The statute has nothing to do with the installation of traffic signals, it it is thought, but relates to the exercise of the privilege and right to disregard the rules of the road. Under those provisions the operators and public owners of the emergency vehicles are relieved from the consequences of a disregard of the rules of the road when the vehicles are operated as such. The right or privilege is dependent upon a due regard for the safety of the public and a nonarbitrary exercise of the right and privilege extended.
■ There is no pleading or contention, as we understand it, the fire truck entered the intersection against the red light without due regard for the safety of the public or that it was so driven against the light arbitrarily, but on the contrary the allegation is the fire truck was answering a fire alarm. The complaint is, as above noted, the action of the city in failing to provide a master switch, under the .pleaded facts, was arbitrary.
For a discussion, of similar provisions of the Civil Code of California see Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599, and the cases there cited.
For the reasons indicated it is our conclusion the judgment of the trial court is correct, and it is affirmed.