LOONEY, Justice.
About 11 o’clock at night, May 13, 1929, Doc Franklin Webster, Tom Webster, brothers, and Bowen Daniels, Doc’s brother-in-law, were killed about three miles south of Bells, in Grayson county, by coming in contact with the power line of the Texas-Louisiana Power Company, at a place where it was broken down by a stroke of lightning about 6 o’clock a. m. the same day. Mrs. N. E. Daniels, mother of Bowen, sued and recovered judgment against the power company, for $7,500 damages, on the theory that the company’s negligence caused the death of her son.
The issues framed by pleadings, the facts developed at the trial, the rulings of the trial court on charges and evidence, and the assignments and propositions urged for reversal, are substantially the same ás were presented in the case of Texas-Louisiana Power Co. v. R. B. Webster et al., 59 S.W.(2d) 902, appealed to this court by the power company, from an adverse judgment rendered in favor of the father, mother, widow, and a posthumous daughter of Doc Webster, for damages resulting from his death. We refer to the record of that case for a full statement of the issues, facts, except as noted later, the discussion and holdings of the questions raised, and the authorities cited.
As was held in that case, so we hold, that deceased was not a trespasser, as to appellant, and that the doctrine applicable to that relationship has no application here. We overrule assignments in which appellant contends that the death of Bowen Daniels was the proximate result of an act of God, or that it was due to an unavoidable accident. We also overrule assignments complaining of the exclusion of evidence offered to show that deceased and his companions entered the premises for an illegal purpose. The law controlling appellant’s conduct is designed to protect saint and sinner alike, and the evi[181]*181dence offered could Lave liad no other effect than to unduly prejudice the jury against plaintiff. We also overrule the contention of appellant urged to propositions Nos. 32 and 34, to the effect, that the court erred in refusing to define certain clauses employed in its charge; ' also the contention urged in proposition No. 33, 'that the court erred in failing to instruct the jury that there might be more than one proximate cause. These questions were discussed in the Webster Case and our reasons given for the ruling stated.
Appellant alleged specific acts of deceased, as constituting contributory negligence, as follows: In entering upon the premises at night, being unfamiliar with their arrangement, condition, and the location of things that might cause injury; in failing to carry a light or lantern to illumine the path over which he was walking; in entering for the purpose of committing unlawful acts, viz. burglary and theft; in entering without the knowledge, consent, permission, or sanction of the owner of the premises, or the occupant thereof, and without invitation or allurement ; in entering without requesting a guide to accompany him; and that, in leaving the premises, deceased chose a different route to that over which he had entered, neither of which was familiar to him.
The court submitted the issue of contributory negligence, in general terms, which was found for plaintiff, to which appellant objected because of its generality, and in addition requested the submission of issues presenting the different phases, as pleaded, all of which were refused.
If the evidence raised the issue of contributory negligence, we think the court committed reversible error in refusing these charges, but we do not think the issue was raised at all. It is undisputed that deceased and companions were total strangers to the community, were ignorant of the condition of the power line, or even of its existence at the place where the deaths occurred; consequently, were entirely ignorant of the danger attendant upon entering, and passing over the cotton field.
Contributory negligence can only be predicated upon a failure to use reasonable care for one’s own safety to avoid the thing that caused injury. If one is ignorant of the danger and is not required to anticipate its presence, as in the instant case, no duty exists to exercise such care;. for this reason, we do not think the issue of contributory negligence is in the case.
The decisive question is, Was appellant guilty of actionable negligence? and the material propositions urged for reversal, are based upon the refusal of requested issues relating to that question. Appellant assigns error on the refusal to give requested issues Nos. 12 and 17, as follows: “Special Issue No. 12: Find from a preponderance of the evidence whether or not the defendant had any knowledge that its transmission line was low and near the ground at the place where Bowen Daniels sustained his injuries prior to the time that such injuries were sustained? Answer ‘yes’ or ‘no.’ ” Special issue No. 17 reads: “Find from a preponderance of the evidence whether or not the defendant knew, or by the exercise of ordinary care should have known, that its transmission line was low and near the ground prior to the time Bowen Daniels came in- contact therewith? Answer ‘yes’ or ‘no.’ ”
In answer to issues submitted in the general charge, the jury found that appellant was guilty of actionable negligence, in the following respects: In permitting its wires to remain low and near the ground; in failing to have a watchman at the time and place to prevent any one from coming in contact with the low-hanging .wires; in keeping its wires charged with a powerful current of electricity while the same were hanging near the ground. These findings necessarily comprehend the further and incidental fact that appellant knew of the condition of its power line prior to the death of these parties, or by the exercise of reasonable care, should have known; in other words, the requested issues presented material inquiries, and, unless their refusal became immaterial, by reason of other matters, reversible error is shown.
If appellant had actual knowledge of the damaged condition of its power line, in time, by the exercise of reasonable care, to have remedied the defect, or otherwise prevented the tragedy, the inquiry whether by the exercise of reasonable care it could or should have ascertained such condition becomes immaterial. But, if actual knowledge existed, it was received through George Ferguson, appellant’s alleged agent at Bells. The evidence is conflicting as to his agency, but, as this incidental issue was neither submitted in the general charge, nor requested by either party, we must assume, in support of the judgment, that the trial court found, from conflicting evidence, that Ferguson was in fact appellant’s agent, and, the evidence being undisputed that he was notified by Chil-dress, the rural mail carrier, about 10 o’clock Monday morning, of the dangerous condition of the power line, actual knowledge was thus established. So, in view of this situation, the refusal of requested issue No. 12, even if error, was harmless; and the further inquiry, whether or not, by the exercise of reasonable care, appellant could or should have discovered the dangerous condition of its power line, became immaterial; besides, we fail to find in the record any evidence tending to show that appellant exercised care to ascertain the damaged condition of its line prior to the tragedy.
[182]*182But aside from these considerations, we are of opinion that the findings of negligence against appellant were justified by pleading and proof, under the doctrine of res ipsa loquitur. Appellant was required by statute (Rev. St. 1925, art.
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LOONEY, Justice.
About 11 o’clock at night, May 13, 1929, Doc Franklin Webster, Tom Webster, brothers, and Bowen Daniels, Doc’s brother-in-law, were killed about three miles south of Bells, in Grayson county, by coming in contact with the power line of the Texas-Louisiana Power Company, at a place where it was broken down by a stroke of lightning about 6 o’clock a. m. the same day. Mrs. N. E. Daniels, mother of Bowen, sued and recovered judgment against the power company, for $7,500 damages, on the theory that the company’s negligence caused the death of her son.
The issues framed by pleadings, the facts developed at the trial, the rulings of the trial court on charges and evidence, and the assignments and propositions urged for reversal, are substantially the same ás were presented in the case of Texas-Louisiana Power Co. v. R. B. Webster et al., 59 S.W.(2d) 902, appealed to this court by the power company, from an adverse judgment rendered in favor of the father, mother, widow, and a posthumous daughter of Doc Webster, for damages resulting from his death. We refer to the record of that case for a full statement of the issues, facts, except as noted later, the discussion and holdings of the questions raised, and the authorities cited.
As was held in that case, so we hold, that deceased was not a trespasser, as to appellant, and that the doctrine applicable to that relationship has no application here. We overrule assignments in which appellant contends that the death of Bowen Daniels was the proximate result of an act of God, or that it was due to an unavoidable accident. We also overrule assignments complaining of the exclusion of evidence offered to show that deceased and his companions entered the premises for an illegal purpose. The law controlling appellant’s conduct is designed to protect saint and sinner alike, and the evi[181]*181dence offered could Lave liad no other effect than to unduly prejudice the jury against plaintiff. We also overrule the contention of appellant urged to propositions Nos. 32 and 34, to the effect, that the court erred in refusing to define certain clauses employed in its charge; ' also the contention urged in proposition No. 33, 'that the court erred in failing to instruct the jury that there might be more than one proximate cause. These questions were discussed in the Webster Case and our reasons given for the ruling stated.
Appellant alleged specific acts of deceased, as constituting contributory negligence, as follows: In entering upon the premises at night, being unfamiliar with their arrangement, condition, and the location of things that might cause injury; in failing to carry a light or lantern to illumine the path over which he was walking; in entering for the purpose of committing unlawful acts, viz. burglary and theft; in entering without the knowledge, consent, permission, or sanction of the owner of the premises, or the occupant thereof, and without invitation or allurement ; in entering without requesting a guide to accompany him; and that, in leaving the premises, deceased chose a different route to that over which he had entered, neither of which was familiar to him.
The court submitted the issue of contributory negligence, in general terms, which was found for plaintiff, to which appellant objected because of its generality, and in addition requested the submission of issues presenting the different phases, as pleaded, all of which were refused.
If the evidence raised the issue of contributory negligence, we think the court committed reversible error in refusing these charges, but we do not think the issue was raised at all. It is undisputed that deceased and companions were total strangers to the community, were ignorant of the condition of the power line, or even of its existence at the place where the deaths occurred; consequently, were entirely ignorant of the danger attendant upon entering, and passing over the cotton field.
Contributory negligence can only be predicated upon a failure to use reasonable care for one’s own safety to avoid the thing that caused injury. If one is ignorant of the danger and is not required to anticipate its presence, as in the instant case, no duty exists to exercise such care;. for this reason, we do not think the issue of contributory negligence is in the case.
The decisive question is, Was appellant guilty of actionable negligence? and the material propositions urged for reversal, are based upon the refusal of requested issues relating to that question. Appellant assigns error on the refusal to give requested issues Nos. 12 and 17, as follows: “Special Issue No. 12: Find from a preponderance of the evidence whether or not the defendant had any knowledge that its transmission line was low and near the ground at the place where Bowen Daniels sustained his injuries prior to the time that such injuries were sustained? Answer ‘yes’ or ‘no.’ ” Special issue No. 17 reads: “Find from a preponderance of the evidence whether or not the defendant knew, or by the exercise of ordinary care should have known, that its transmission line was low and near the ground prior to the time Bowen Daniels came in- contact therewith? Answer ‘yes’ or ‘no.’ ”
In answer to issues submitted in the general charge, the jury found that appellant was guilty of actionable negligence, in the following respects: In permitting its wires to remain low and near the ground; in failing to have a watchman at the time and place to prevent any one from coming in contact with the low-hanging .wires; in keeping its wires charged with a powerful current of electricity while the same were hanging near the ground. These findings necessarily comprehend the further and incidental fact that appellant knew of the condition of its power line prior to the death of these parties, or by the exercise of reasonable care, should have known; in other words, the requested issues presented material inquiries, and, unless their refusal became immaterial, by reason of other matters, reversible error is shown.
If appellant had actual knowledge of the damaged condition of its power line, in time, by the exercise of reasonable care, to have remedied the defect, or otherwise prevented the tragedy, the inquiry whether by the exercise of reasonable care it could or should have ascertained such condition becomes immaterial. But, if actual knowledge existed, it was received through George Ferguson, appellant’s alleged agent at Bells. The evidence is conflicting as to his agency, but, as this incidental issue was neither submitted in the general charge, nor requested by either party, we must assume, in support of the judgment, that the trial court found, from conflicting evidence, that Ferguson was in fact appellant’s agent, and, the evidence being undisputed that he was notified by Chil-dress, the rural mail carrier, about 10 o’clock Monday morning, of the dangerous condition of the power line, actual knowledge was thus established. So, in view of this situation, the refusal of requested issue No. 12, even if error, was harmless; and the further inquiry, whether or not, by the exercise of reasonable care, appellant could or should have discovered the dangerous condition of its power line, became immaterial; besides, we fail to find in the record any evidence tending to show that appellant exercised care to ascertain the damaged condition of its line prior to the tragedy.
[182]*182But aside from these considerations, we are of opinion that the findings of negligence against appellant were justified by pleading and proof, under the doctrine of res ipsa loquitur. Appellant was required by statute (Rev. St. 1925, art. 1436) to maintain its line twenty-two feet above the surface of the ground; its duty was also to exercise reasonable care to inspect and remedy dangerous conditions in its line, 16 Tex. Jur. p. 241, § 10; Jacksonville Ice & Electric Co. v. Moses, 63 Tex. Civ. App. 496, 134 S. W. 379 (writ denied); Arkansas, etc., Co. v. Adcock, 184 Ark. 614, 43 S.W.(2d) 753, and the evidence is that a severe electrical storm prevailed over that section early Monday morning, and that, in the vicinity where lightning struck the power line the storm was of unusual severity. The provision of the statute above mentioned (article 1436) was enacted for the protection of all persons, creatures, and property rightfully passing under a power line, and, on the showing made that, appellant’s wires were permitted to swing near the surface of the ground for eighteen hours, the dangerous condition being easily discernible with the naked eye for at least half a mile, we think, a presumption of negligence arose, casting upon appellant the burden of showing that, notwithstanding these conditions, it had exercised reasonable care in the premises; this presumption appellant wholly failed to rebut. Shawnee L. & P. Co. v. Sears, 21 Okl. 13, 95 P. 449, 455, 456, Delahunt v. United T. & T. Co., 215 Pa. 241, 64 A. 515, 517, 114 Am. St. Rep. 958. The doctrine of res ipsa loquitur is satisfactorily stated in the following, taken from 7 Words and Phrases, First Series, 6139: “The most apt and concise statement of the principle of res ipsa loquitur is found in the leading case of Scott v. London & St. Katherine Docks Co., 3 Hurl. & C. 596, where the plaintiff sued for personal injuries, and the court held there must be reasonable evidence of negligence, but, where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use -proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S. E. 443, 445 (citing Waterhouse v. Schlitz Brewing Co., 12 S. D. 397, 81 N. W. 725, 48 L. R. A. 157).”
Appellant does not contend that the amount of damages found by the jury is excessive, or that the verdict is not sustained by evidence, but does say that the court erred in overruling its objection to issue No. 10 on the measure of damages, because not authorized by evidence. We overrule this contention; the issue, in our judgment, was justified by evidence and properly submitted.
We have carefully examined all assignments of error and propositions urged, and, finding no reversible error, the judgment of the court below is affirmed.
Affirmed.