On Motion for Rehearing
SMITH, Justice.Further consideration of the record in this case leads me to conclude that I was in error in agreeing to the result reached by the Court on October 4, 1967. An exhaustive review of the evidence is unnecessary. It is sufficient to say that the evidence supports the finding of the jury that a clearly defined roadway existed on the Krause property at the point in the roadway where the accident occurred; that the petitioner knew of the existence of such roadway; that the petitioner prior to the time of the explosion failed to give such warning of the presence of the six inch pipe line on the Krause property as would have been given by an ordinary prudent pipe line company under the same or similar circumstances; and, that the failure to warn was a proximate cause of the explosion.
There are other favorable jury findings to support the judgment entered for respondents, but the above will suffice to illustrate my point. Under the evidence in this case the petitioner was under a duty to warn the public, whether some were riding in automobiles, jeeps or in a bulldozer. The petitioner should have anticipated the use of such vehicles. In fact, the petitioner lost its case before the jury largely because it “administratively, unilaterally and mistakenly” decided there was no road at the point of the explosion. Both Phillips’ superintendent and pipe line construction superintendent testified on this question to the same effect. The superintendent testified:
“Q If there had been a place there that was a road, and being used as a road by folks, then you would have considered it desirable to make *697some kind of a marker there, would you not?
“A As a rule. We have other instances like that where we can’t keep people from building a road over our right-of-way, but we put up a big sign warning people, ‘This road is traveling over a high-pressure pipeline.’
“Q You had no such sign on this right-of-way on the Krause land ?
“A No, sir. There was no road there and we didn’t consider it a road.”
The evidence is clear that petitioner followed the custom of erecting warning signs such as “[t]his road is traveling over a high-pressure pipeline” at points where a road existed. The Krause road and a neighboring road are clearly shown upon an aerial map in evidence. There was a marker where the petitioner’s line crossed the neighboring private ranch road; there was no marker to indicate the presence of the pipeline under the Krause road. This Court should not excuse the petitioner merely because it mistakenly believed no road existed on the Krause property. As argued by the respondents in their motion for rehearing:
“ * * * roads, public and private, bespeak human activity — travel, if you please, travel by all kinds of vehicles— bulldozers, pickup trucks, maintainers and all of the other machinery and vehicles which go to the building, maintenance and use of roads. Many uses must be anticipated for roads. For instance, just as this road was graded and built by a maintainer, a maintainer will most certainly be employed sooner or later in the maintenance of same. A maintainer so used, unless adequate warning is given, will most certainly rupture one of Phillips’ shallow pipe lines.”
Whether or not petitioner was under a duty to warn does not depend upon whether the use of the road was an ordinary use or an extraordinary use. The degree of care to be exercised must be commensurate with the danger. I cannot accept the statement in the Court’s opinion that “[t]he duty of using ordinary care to protect those making a reasonable and ordinary use of the surface does not extend to require the protection of those moving heavy equipment across a pipe line, because the pipe line operator is not charged with foreseeing such an extraordinary use of the surface.” The concept that the size of the equipment used on a road determines whether or not the pipe line company owes a duty to warn has no merit. The petitioner was under a duty to mark road pipe line crossings. See Thompson v. Ohio Fuel Gas Co., 9 Ohio St.2d 116, 224 N.E.2d 131 (1967). Green, Proximate Cause in Texas, 28 Texas L.Rev. 776-77.
The Court relies upon the case of Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.Sup.Ct., 1963) in support of its decision. I agree with respondents that there is no analogy between that case and this. I agree with respondents’ argument that,
“Pioneer Gas involved an altogether different situation, with vastly differing duties and obligations. In that case it was held that K & M Company was charged as a matter of law with the duty to inquire before excavating in a city street by reason of the fact that it is a matter of common knowledge that all kinds of gas lines, electric lines, sewer lines, etc., are to be found under city streets. There is no analogy between K & M dealing with city streets and urban conditions and the present situation dealing with a private ranch road and rural condition. Further no analogy exists between excavation and travel upon a road, a distinction made in Thompson (supra). All of the other cases referred to in the Court’s opinion in Pioneer are cases involving gas or electric transmission lines under city streets. Not a single case relates to a rural situation. All of these cases are based upon the fact that any [one] knows *698excavating in a city street is potentially dangerous.”
The basic issue before the Court is whether or not there was any evidence from which the jury could conclude that the petitioner should have anticipated the need for a warning marker near the explosion site. As heretofore stated, the jury has found that the petitioner knew there was a clearly defined road where the accident occurred, and that the failure to warn of the existence of the pipe line was a proximate cause of the resulting injuries sustained by respondents.
The judgment of the trial court and the Court of Civil Appeals should be affirmed.