I dissent from the order denying a rehearing of this cause.
It is here decided, among other things, that the superior court erred in sustaining the objection to the defendant's offer to prove the adoption by the board of trustees of the city of Fresno of the following report of the city electrician: —
"To the Honorable, the Board of Trustees of the City of Fresno: Gentlemen — The undersigned, the city electrician of the city of Fresno, herewith submits for your consideration his report for the month of December 30, 1905, as follows, to wit:
"`On the 13th the water and light committee met representatives of the Power Company in my office to decide on some safe and practical method of handling dangerous wires at fires. It was agreed that by giving the right of way over all others to the telephone lines, to the city electrician and fire chief, that the current could be shut off quicker and with a great deal more safety in any district of the city, by the attendant at the station. As with switches, it would be necessary to pull at least two to kill the line, and it would be necessary to climb *Page 591 the poles to do so. And besides, it is possible that the switch pole might be in range of the fire, in which case the switch would be useless.
"`Respectfully submitted, "`C.T. McSHERRY, "`City Electrician.'"
If this report had been offered by the plaintiffs in support of their case I think it would have been harmful error to have excluded it, for it would have proved in their favor that the necessity of providing "some safe and practical method of handling" the wires of the defendant carrying dangerous voltage in case of fires had been recognized and considered both by the city authorities and by the defendant — that it had been agreed that a proper measure of precaution in such case would be the cutting off of the circuit (i.e. the district) affected and that the defendant's plan of cutting out the whole district at the sub-station had been adopted in preference to the alternative plan of providing local switches within the various districts. This, in connection with abundant evidence that the defendant's agent at the sub-station, knowing that a fire had started within five or six blocks of the station, and in a district to which its wires extended carrying a voltage which the event proved to have been deadly to a grown man in apparently sound health, had neglected for forty minutes after the alarm of fire to adopt the precaution suggested by defendant itself and claimed to be the safest and most practicable, would have made out a clear case of highly culpable negligence — unless the adoption of the electrician's report can be construed as a valid agreement exempting the defendant from any obligation to cut off the current from a circuit where a fire might be raging until its agent at the sub-station should be requested to do so by the city electrician or the chief of the fire department. This indeed seems to be the view of the court, and, as appears from the opinion, is the ground upon which the ruling of the superior court is condemned. It is from this view that I dissent. It is perhaps a just inference from the terms of the report that its author assumed it to be a part of the duty of himself and the fire chief to the public (but not to the defendant) to give prompt notice of the occurrence and locality of the fire to the persons in charge of the defendant's sub-station, but this did not exempt the defendant from the duty of acting *Page 592 promptly upon the same notice coming from any other person or in any other form. That they had such notice, and neglected to act upon it with reasonable promptitude was in my opinion amply proved, and it was no error as to the defendant to exclude the electrician's report and proof of its adoption, since it had no tendency to prove that the neglect to shut off the current at the station was excused by the failure of the fire chief and electrician to make the request.
I do not think this court can on the evidence set aside the finding of the trial court as to contributory negligence.
As to the status of a fireman who enters a burning building in a city in the vicinity of other buildings for the purpose of extinguishing the fire or saving life or property it may be that the liability of the owner for any injury received by him while on the premises is no other or greater than it would be to a mere licensee, but the fireman is not there as a licensee of the owner; he is there in performance of his duty as a public servant under the authority and protection of regulations clearly within the police power of the state, and of superior force to the will of the owner of the premises; and he is entitled to the same indemnity for injuries caused by the culpable negligence of others as if he were on a public street.
As to the comparative harmlessness of less than five hundred volts res ipsa loquitur. Either these wires carried more than five hundred volts, or less than that voltage, though harmless to most men, is deadly to some — and those few are entitled to protection. And, finally, the argument based upon the serious dangers (of panic, etc.) involved in the cutting out of a circuit on an alarm of fire does not appear to consist very well with the choice of a plan of handling its dangerous wires suggested by the defendant itself and approved by the city trustees, which was nothing less than a means of transmitting prompt notice of the outbreak of a fire to the sub-station and the cutting out of the circuit.
Upon this view of the case the question presented by the appeal is not whether it can be held as a matter of law that it was culpable negligence on the part of the defendant to wait for official notice of the danger before adopting any precaution against it, but is on the other hand whether it can be held as a matter of law that under the facts disclosed by the evidence there was no culpable negligence. Negligence is a *Page 593 question of fact and not of law except in those cases where upon the facts found or proved there can be no reasonable difference of opinion as to the absence of culpability. In this case the judge of the trial court, performing the function of a jury, has found that there was negligence. I do not think that his conclusion was unreasonable. At least I think the case is deserving of further consideration.