BOND, Chief Justice.
On September 29,1945, and for more than a year prior thereto, appellant Bernard Ablon was operating a public automobile garage or parking station on Pacific Avenue, in the Gty of Dallas, known as the Republic Garage, charging a scale rate based on the length of time automobiles were parked therein. The garage is a two-story brick building, facing Pacific Avenue and extending back to Elm Street, with a public foot passageway leading through the building. The front of the lower, or first floor, where automobiles enter, is without a wall and not equipped with doors or shutters or obstructions and with no means of closing the garage; it being what is commonly termed an open garage. Inside the building, about fifty feet from the entrance and hanging from the ceiling in plain view from the entrance, was a sign 15 by 25 inches with four-inch lettering, reading: “Garage closes at 7:30 P.M. Cars left after this at owner’s risk;” and another that the owner of the garage would not be liable for loss by fire, storm or theft. About 4:00 or 4:30 on the afternoon of said day, appellee H. W. Hawker, the owner of a 1941 model Buick sedan automobile, drove his automobile to the entrance of the garage and there delivered it to an attendant of appellant for storage. The attendant, in accepting the automobile, gave appellee an identification or claim check, or stub, which appellee accepted, putting it in his pocket without reading, or asking for or receiving any information [267]*267as to the conditions of such bailment; and walked away from the entrance without going into the garage or observing the signs in the garage. On the check, or stub, which was detached from a similar check or stub retained by the attendant, was a condition or limitation of liability, reading: “Republic Garage. Safe inside parking. 1312 Pacific Avenue. Dallas. Not responsible for damage by fire, theft, storm, accident, or articles left in car. Telephone R-0454. 7800.”
It is undisputed that appellant’s garage was operated on daylight schedule, opening at 8:00 A.M. and closing at 7:30 P.M., and that there was no employe or watchman on duty after closing hours; nor had such ever been employed. And there is no evidence that any garage similarly situated maintains watchmen. Mr. Ablon, at 7:45 P.M., was the last person leaving the premises and, as was usual and customary when customers’ cars were in storage at time of closing, he placed the key to the ignition lock of appellee’s car over the sun visor, above the windshield, and left a note therein reading: “Please deposit 30 cents in this envelope, along with your car stub, and push it across counter so it will fall on floor.” Sometime during the night, about 9:00 o’clock, the automobile was stolen from the garage and damaged —and the thieves apprehended. There is no question but that the automobile was damaged as the result of the theft; also that there was no barrier or obstruction of any kind to prevent the car from being stolen.
Appellee’s suit, primarily, is based on a contract of bailment for hire, on the theory of presumptive negligence; and, in the alternative, for damages occasioned by defendant’s failure to exercise ordinary care in the following particulars: “(1) Defendant failed to have an attendant on duty in said garage while plaintiff’s automobile was stored therein. (2) In the alternative, the attendant or attendants on duty in said garage failed to keep a proper lookout for the protection of plaintiff’s automobile. (3) That the defendant failed to have said garage or storage space enclosed so as to prevent strangers from entering the premises and removing plaintiff’s automobile therefrom. (4) That the defendant failed to have the entrance to such garage locked while an attendant was not on duty so as to prevent strangers from entering said premises and removing plaintiff’s automobile therefrom.”
On trial to the court without a jury, a judgment, not stating on what theory it was based, was entered for the plaintiff for $1,018, with legal interest and all costs of suit. The defendant appealed.
We think it is settled in this State that in suits on contracts of bailment for hire, where the property is lost or damaged by fire or theft, no presumption of negligence is imputed to the bailee, and that the burden of proof to show bailee’s negligence resulting in such loss or damage, rests on the bailor. Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133; American Express Co. v. Duncan, Tex.Civ.App., 193 S.W. 411; Munger Automobile Co. v. American Lloyds of Dallas, Tex.Civ.App., 267 S.W. 304; Leonard Bros. v. Standifer, Tex.Civ.App., 65 S.W.2d 1112. In the case at bar, the automobile having been damaged as a result of theft, plaintiff having failed to jplead negligence in connection with his primary cause of action, it cannot be presumed that the trial court’s judgment rests on the contract of bailment.
Negligence in fire, theft, storm or accident cases, is never presumed, and the mere happening of damage by such means is no evidence of negligence. Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660; Phillips v. Citizens’ National Bank, Tex.Com.App., 15 S.W.2d 550; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195. Negligence is a positive matter, and, before it can be imputed to a party to a suit, facts must be alleged and proved showing negligence, or circumstances must be shown from which negligence may be reasonably inferred, and that such negligence was the proximate cause of the injury complained of. Exporters’ & Traders’, etc., v. Schulze, supra. So, in the case at bar, if appellant is liable at all for the damages to appellee’s automobile, it must be held on his alleged alternative pleadings and proof of negligence in the particulars alleged; that is, negligence because of the omission of having an attendant on duty in said garage, or having bar[268]*268riers or obstructions “to prevent strangers from entering the premises and removing plaintiff’s automobile therefrom;” and that such negligence was the proximate cause of the theft and damage.
It is possible that appellant did not use ordinary care in the manner in which he maintained the premises; that the front of the building should have had doors or shutters, or some kind of barrier or obstruction to keep “strangers,” as appellant alleges, “from entering the building,” or should have had “some attendant on duty” while appellee’s automobile was in storage. However, the condition of the premises was open to appellee, which he saw, or coul4 have' seen by casu'al observation, or the asking of questions seeking information. The building was not equipped with door or shutters; an open foot passageway extended through the building from Elm Street to Pacific Avenue, for use of patrons and public, and appropriate signs were placed in conspicuous places limiting the owner’s liability. So, we think the mere fact that appellant failed to have precautionary measures to prevent “strangers” from entering the premises shows no active negligence. Such failure of duty, if any, does not necessarily imply that appellant was guilty of ordinary negligence to prevent ‘‘theft” and that same was the proximate result thereof.
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BOND, Chief Justice.
On September 29,1945, and for more than a year prior thereto, appellant Bernard Ablon was operating a public automobile garage or parking station on Pacific Avenue, in the Gty of Dallas, known as the Republic Garage, charging a scale rate based on the length of time automobiles were parked therein. The garage is a two-story brick building, facing Pacific Avenue and extending back to Elm Street, with a public foot passageway leading through the building. The front of the lower, or first floor, where automobiles enter, is without a wall and not equipped with doors or shutters or obstructions and with no means of closing the garage; it being what is commonly termed an open garage. Inside the building, about fifty feet from the entrance and hanging from the ceiling in plain view from the entrance, was a sign 15 by 25 inches with four-inch lettering, reading: “Garage closes at 7:30 P.M. Cars left after this at owner’s risk;” and another that the owner of the garage would not be liable for loss by fire, storm or theft. About 4:00 or 4:30 on the afternoon of said day, appellee H. W. Hawker, the owner of a 1941 model Buick sedan automobile, drove his automobile to the entrance of the garage and there delivered it to an attendant of appellant for storage. The attendant, in accepting the automobile, gave appellee an identification or claim check, or stub, which appellee accepted, putting it in his pocket without reading, or asking for or receiving any information [267]*267as to the conditions of such bailment; and walked away from the entrance without going into the garage or observing the signs in the garage. On the check, or stub, which was detached from a similar check or stub retained by the attendant, was a condition or limitation of liability, reading: “Republic Garage. Safe inside parking. 1312 Pacific Avenue. Dallas. Not responsible for damage by fire, theft, storm, accident, or articles left in car. Telephone R-0454. 7800.”
It is undisputed that appellant’s garage was operated on daylight schedule, opening at 8:00 A.M. and closing at 7:30 P.M., and that there was no employe or watchman on duty after closing hours; nor had such ever been employed. And there is no evidence that any garage similarly situated maintains watchmen. Mr. Ablon, at 7:45 P.M., was the last person leaving the premises and, as was usual and customary when customers’ cars were in storage at time of closing, he placed the key to the ignition lock of appellee’s car over the sun visor, above the windshield, and left a note therein reading: “Please deposit 30 cents in this envelope, along with your car stub, and push it across counter so it will fall on floor.” Sometime during the night, about 9:00 o’clock, the automobile was stolen from the garage and damaged —and the thieves apprehended. There is no question but that the automobile was damaged as the result of the theft; also that there was no barrier or obstruction of any kind to prevent the car from being stolen.
Appellee’s suit, primarily, is based on a contract of bailment for hire, on the theory of presumptive negligence; and, in the alternative, for damages occasioned by defendant’s failure to exercise ordinary care in the following particulars: “(1) Defendant failed to have an attendant on duty in said garage while plaintiff’s automobile was stored therein. (2) In the alternative, the attendant or attendants on duty in said garage failed to keep a proper lookout for the protection of plaintiff’s automobile. (3) That the defendant failed to have said garage or storage space enclosed so as to prevent strangers from entering the premises and removing plaintiff’s automobile therefrom. (4) That the defendant failed to have the entrance to such garage locked while an attendant was not on duty so as to prevent strangers from entering said premises and removing plaintiff’s automobile therefrom.”
On trial to the court without a jury, a judgment, not stating on what theory it was based, was entered for the plaintiff for $1,018, with legal interest and all costs of suit. The defendant appealed.
We think it is settled in this State that in suits on contracts of bailment for hire, where the property is lost or damaged by fire or theft, no presumption of negligence is imputed to the bailee, and that the burden of proof to show bailee’s negligence resulting in such loss or damage, rests on the bailor. Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133; American Express Co. v. Duncan, Tex.Civ.App., 193 S.W. 411; Munger Automobile Co. v. American Lloyds of Dallas, Tex.Civ.App., 267 S.W. 304; Leonard Bros. v. Standifer, Tex.Civ.App., 65 S.W.2d 1112. In the case at bar, the automobile having been damaged as a result of theft, plaintiff having failed to jplead negligence in connection with his primary cause of action, it cannot be presumed that the trial court’s judgment rests on the contract of bailment.
Negligence in fire, theft, storm or accident cases, is never presumed, and the mere happening of damage by such means is no evidence of negligence. Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660; Phillips v. Citizens’ National Bank, Tex.Com.App., 15 S.W.2d 550; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195. Negligence is a positive matter, and, before it can be imputed to a party to a suit, facts must be alleged and proved showing negligence, or circumstances must be shown from which negligence may be reasonably inferred, and that such negligence was the proximate cause of the injury complained of. Exporters’ & Traders’, etc., v. Schulze, supra. So, in the case at bar, if appellant is liable at all for the damages to appellee’s automobile, it must be held on his alleged alternative pleadings and proof of negligence in the particulars alleged; that is, negligence because of the omission of having an attendant on duty in said garage, or having bar[268]*268riers or obstructions “to prevent strangers from entering the premises and removing plaintiff’s automobile therefrom;” and that such negligence was the proximate cause of the theft and damage.
It is possible that appellant did not use ordinary care in the manner in which he maintained the premises; that the front of the building should have had doors or shutters, or some kind of barrier or obstruction to keep “strangers,” as appellant alleges, “from entering the building,” or should have had “some attendant on duty” while appellee’s automobile was in storage. However, the condition of the premises was open to appellee, which he saw, or coul4 have' seen by casu'al observation, or the asking of questions seeking information. The building was not equipped with door or shutters; an open foot passageway extended through the building from Elm Street to Pacific Avenue, for use of patrons and public, and appropriate signs were placed in conspicuous places limiting the owner’s liability. So, we think the mere fact that appellant failed to have precautionary measures to prevent “strangers” from entering the premises shows no active negligence. Such failure of duty, if any, does not necessarily imply that appellant was guilty of ordinary negligence to prevent ‘‘theft” and that same was the proximate result thereof.
“Where the relation of bailor and bailee for hire or mutual benefit subsists, it devolves on the bailee to use ordinary care and diligence in the safeguarding of the bailor’s property. If it is lost through a failure to observe such duty, he is answerable, but of course he is not responsible for any losses not occasioned by the ordinary negligence of himself or his servants; he will not, therefore, be liable for any loss by thieves, or for any taking from him or his servants by force.” 3 R.C.L. 96, Sec. 23. By ordinary care, as the term is used in reference to a bailee’s duty, is meant such diligence as an ordinarily prudent person exercises in matters of his own business under like circumstances. Thornton v. Athens Nat. Bank, Tex.Civ.App., 252 S.W. 278; Staley v. Colony Union Gin Co., Tex. Civ.App., 163 S.W. 381.
Then, too, parties to a bailment may and frequently do make special contracts limiting liability, when not contrary to public policy or statute, and the responsibility will be measured and determined by the terms of such contract, “The bailee may, by special contract, be relieved of all liability due to his or her employee’s want of care, except gross negligence.” 5 Tex. Jur. 1026, Sec. 16. The “express agreement determines the rights and liabilities of the parties arising from the bailment.” Direct Nav. Co. v. Davidson, 32 Tex.Civ. App. 492, 74 S.W. 790, 791; Sanchez v. Blumberg, Tex.Civ.App., 176 S.W. 904. The stub or claim check given to Mr. Hawker limited the bailee’s liability; in effect, took into consideration the condition of the premises and manner and method of operating the garage. Indeed, such did not imply limitation for gross negligence, or negligence done outside of the usual and customary way of handling such business. The mere fact that the bailor failed to read the liability limitation plainly printed on the stub, or to observe the signs plainly visible in the garage, does not, in the least, excuse him from culpable assumption of the risk because of appellant’s omission to have the premises secure from thieves. Undoubtedly appellant had a legal right to operate an open garage and, in doing so, limit his liability by contract for damage occasioned by theft or fire. He did so, and gave appellee the conditions by which he accepted the bailment. Courts cannot make contracts for the parties.
We think that the undisputed evidence, as a matter of law, acquits appellant of actionable negligence, and that the judgment of the court below should be reversed and here rendered for appellant. It is so ordered.
LOONEY, J., dissents.