CONREY, P. J. —

This is an action to recover damages for personal injuries sustained by the plaintiff when, in the course of his employment on August 31, 1918, as a brakeman on the Atchison, Topeka and Santa Fe Railway, he was climbing the side of a moving box-car which had been detached from the engine, and came in contact with a pole which appellant, board of public service commissioners, had erected near the railway track and on the sidewalk of Palmetto Street, in the city of Los Angeles. This pole was a part of a system of poles and wires for the transmission of electric power to the inhabitants of said city, for which service the city was receiving remuneration and deriving a profit from the sale of said electric power. The car on which the plaintiff was riding was traveling on a spur-track built on a private right of way immediately north of and adjacent to Palmetto Street. Judgment was entered upon the verdict in favor of plaintiff in the sum of two thousand five hundred dollars, from which judgment defendants appeal.

The railroad track was so located that at the point opposite the pole the nearest rail was only 1.65 feet from the north line of the street. The width of the car (which was an ordinary box-car on the side of which respondent was climbing on a ladder at the instant of the accident) was such that the car projected more than a foot beyond the street line and over the sidewalk. This condition of the track, and similar use thereof by the railroad company, had existed for a long time. Accordingly the fact is established that the railroad company, and respondent as its employee, both before and at the time of this accident, were engaged in the business of using and occupying the street for the purpose of operating railroad trains thereon. Supplementary to the foregoing facts and for the purpose of establishing their contention that respondent at the time of the accident was a trespasser upon the street, appellants offered evidence, appropriate for the purpose, to prove that the railway company had no franchise to operate its cars on Palmetto Street at the point where the accident occurred. Objections to this evidence were sustained upon the ground that, as stated in the objections of counsel, evidence concerning the franchise was immaterial "in view of the law in this case that an obstruction shall not be placed within so many feet of a railroad track. It is immaterial where the franchise extends to." Appellants contend that the court erred in rejecting this evidence. The "law in this case," referred to in the objection, is General Order No. 26 of the Railroad Commission of the state of California, which establishes a minimum clearance for pole lines on each side of the center line of railroads. Appellants were charged with negligence in the erection and maintenance of the pole, in that the pole was located less than eight feet from the center line of the railroad track, and therefore was so placed in violation of law.

[1] The right of a railroad corporation to use a street within an incorporated city cannot exist unless it is granted by a two-thirds vote of the town or city authorities from which the right must emanate. (Civ. Code, sec. 470; San Pedro etc. Co. v. City of Long Beach, 172 Cal. 631, [ 158 P. 204].) In Pittsburgh etc. Co. v. Hood, 94 Fed. 618, [36 C. C. A. 423], the circuit court of appeals said: "In the absence of legislative authority, either direct or through the authorized action of a municipality, the construction and use by a railroad company of its road longitudinally on a highway or street is a public nuisance, and the company is subject to indictment for creating and maintaining such a nuisance. . . . Such unauthorized occupation and use of streets and highways, being wrongful, not only creates a nuisance, but constitutes a railway company a trespasser, and renders it liable for such damages as proximately result to persons or property in the absence of contributory negligence." In response to the proposition last above stated, counsel for respondent say that the right of way in question had been given to the railroad company by the city of Los Angeles and had been used by the railroad for over fifteen years; that the railroad was not a trespasser in using this track; further that this question is not raised by the pleadings but was raised for the first time upon the trial of the case. But they do not refer us to any part of the record showing that any right of way over Palmetto Street had ever been given to the railroad by the city. The error which appellants complain of is that the court refused to permit appellants to introduce evidence proving that no such right of way had ever been granted.

[2] It was not necessary that appellants in their answer allege that respondent at the time and place of the accident was a trespasser upon the street, or that the railroad company was using the street without a franchise. Under the denial of negligence on the part of the defendants, and their denial that the plaintiff had suffered damage through such alleged negligence, as well as under their plea that the plaintiff's injuries were due to his own negligence, they were entitled to prove any fact which, if established, would make good these defenses. [3] Liability for negligence arises where one person causes an injury to another by his want of ordinary care or skill in the management of his property, except so far as the person injured has willfully or by want of ordinary care brought the injury upon himself. (Civ. Code, sec. 1714). But the standard by which to test the "ordinary care or skill" required of a person in the management of his property is different, in the case of a trespasser or mere licensee upon the defendants' property, from the standard established in favor of a person lawfully present upon the premises where the injury is inflicted, and whose right to be there is not limited to that of a licensee. "A mere licensee cannot recover where the injuries are caused solely by reason of the unsafe condition of the premises and without any active or overt act of negligence committed against him by the occupant or owner of the premises." ( Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 493, [ 179 P. 414].) Even if it were conceded that by reason of long use, without any objection from the city, the railroad company had ceased to be a trespasser in encroaching upon the street in the manner hereinabove stated without any franchise having been granted to it for that purpose, the company and its employees could not in any event have acquired any status better than that of a mere licensee with respect to such use of the street. So considered, any person using the street under that license must take the premises as he finds them. Under the evidence in this case no claim can be made that any active or overt act of negligence was committed by appellants against respondent at the time and place of the accident by which his injuries were received. The unsafe condition of the premises, if they were unsafe at all, was caused solely by reason of the presence of the pole in the place where it had been set up before the day when the accident occurred. This being so, appellants would not have been guilty of any negligence of which respondent had a right to complain. [4] Therefore we conclude that the court erred in refusing to admit the offered evidence. And if evidence to the effect that the train was being operated without a franchise had been received, appellants would have been entitled to have appropriate instructions given to the jury, stating the legal effect of such evidence if believed and found to be true.

[5] The distance of the pole as located and placed by appellants was less than eight feet from the center line of the spur-track. This was less than the minimum clearance for pole lines on each side of the center line of railroads as established by General Order No. 26 of the Railroad Commission which is set out in the complaint. Respondent claims that the order is applicable to the location or maintenance of poles in the public streets of the city of Los Angeles, and that, therefore, the pole was erected and maintained at that place in violation of law, and that this was negligence, in that it was a violation of an obligation imposed by law, due from appellants to respondent at the time and place of the accident. Appellants contend that the order has no application to the location or maintenance of poles in the public streets of said city, and therefore that the court erred in giving to the jury the following instruction: "You are instructed that if the defendants, or either of them, placed a pole such as is alleged in the complaint at a point nearer than eight (8) feet from the center line of the railroad track described in the complaint herein, then I instruct you that the defendants are guilty of negligence, and if you find that such negligence was the proximate cause of the injury complained of your judgment shall be for the plaintiff unless you further find that the plaintiff's injuries were caused by his own contributory negligence." The city council of the city of Los Angeles is vested with power by ordinance to regulate the placing or maintaining of poles and the suspending of wires along or across any of its streets (Charter, art. III, sec. 31). The board of public service commissioners is vested with power to construct, operate, maintain, and extend electric plants, works, systems, and equipments, and other means for supplying the city and its inhabitants with electricity for light, power, heat and other purposes. (Charter, art. XVIII, sec. 192g.) Subdivision 51 of section 2 of article I of the charter empowers the city "to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter . . ." This charter power is conferred within the terms of sections 6 and 8 of article XI of the state constitution, which provides that by their charters cities may "make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws." Referring to the adoption of said subdivision 51, the supreme court, in Civic Center Assn. v. Railroad Commission, 175 Cal. 441, 448, [ 166 P. 351, 354], said: "Thereupon, according to the terms of those sections of the constitution, its powers over municipal affairs became all-embracing, restricted and limited by the charter only, and free from any interference by the state through general laws, including laws giving the Railroad Commission powers over public utilities. The result is that the city has become independent of general laws upon municipal affairs. Upon such affairs a general law is of no force with respect to Los Angeles. If its charter gives it powers concerning them, it has those powers; if its charter is silent as to any such power, no general law can confer it."

In view of the law as above stated, if the location of poles in a public street of said city is in all of its possible relations a municipal affair, the conclusion must follow that the general order in question of the Railroad Commission had no force or effect with reference to the location of the pole with which respondent came into contact and thereby received the injuries of which he complains. The use of the streets of a municipality for the maintenance therein of telegraph and telephone poles and wires, although a use secondary to the ordinary uses thereof by the general public, is a municipal affair. ( Sunset Tel. Tel. Co. v. Pasadena, 161 Cal. 265, 286, [ 118 P. 796].) But while in general terms this is true, it is also true that these and analogous uses of a street sometimes have interrelations with things of general state interest which are not municipal affairs. In recognition of this fact, it has been held that the right and power of the Railroad Commission, under section 43 of the Public Utilities Act [Stats. 1911 (Ex. Sess.), p. 40], to require state railroads to establish viaducts or subways at street crossings in the city of Los Angeles, is a right and power to make regulations which are matters of general state concern, which are not properly municipal affairs. "The right of the legislature, under sections 17, 22, and 23, article XII, of the constitution, to commit the regulation of these railroads, so far as they operate within the cities, to the exclusive control of the Railroad Commission, is not a matter which can be classed as a municipal affair, but is a matter of general concern, and the legislative declarations on the subject are paramount to any city charter." ( Civic Center Assn. v. Railroad Commission, 175 Cal. 441, 451, [ 166 P. 351, 355].)

The principle of decision based upon the constitution and charter provisions above mentioned is applicable to appellant city while acting in the capacity of a corporation owning and conducting the business of selling and distributing electric power. While the supplying of water by a city to its inhabitants is held to be a municipal purpose ( Marin Water etc. Co. v. Town of Sausalito, 168 Cal. 587, 598, [ 143 P. 767]), and while the supplying of electric light and power by a city to its inhabitants is also a thing within the scope of municipal purposes where the right to conduct such business has been granted to the city, it is also well established that, in conducting business of this character, the city is exercising proprietary rather than governmental functions. It is upon this principle that cities are liable for negligence in the operation of such business. ( Davoust v. City of Alameda, 149 Cal. 69, [9 Ann. Cas. 847, 5 L. R. A. (N. S.) 536, 84 P. 760]; Chafor v. City of Long Beach, 174 Cal. 478, 487, [Ann. Cas. 1918D, 106, L. R. A. 1917E, 685, 163 P. 670].) In Davoust v. City of Alameda, supra, the court (quoting Western S. F. Society v. Philadelphia, 31 Pa. St. 183) said in effect that where the power is given to a city to supply gaslight to its inhabitants, the city thereby exercises a special private franchise; that the investment made in such business is the private property of the city as much as are the lands and houses belonging to it; that the city stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.

[6] We conclude, therefore, that General Order No. 26 applies to and controls the location by appellants of poles for use as a part of their power distributing system, to the same extent that it is applicable to a private corporation exercising similar rights under any franchise. That the subject matter of the order, whether the particular matter involved be within or without the city of Los Angeles, is of general interest and not merely of local or municipal concern is quite as clear as that the power to require state railroads to establish viaducts or subways at street crossings in that city is a matter of general state concern. The act of setting a telephone pole in the street within eight feet from the center line of a railroad track was a violation of a valid order, having the force of law, governing that situation.

But the unqualified statement made in the court's instruction to the jury, that if the defendants placed the pole less than eight feet from the center line of the railroad track they were guilty of negligence, would not have been a correct statement as applied to the situation existing between the plaintiff and the defendants, if it had been a proved fact in the case that the railroad company, in whose business the plaintiff was employed, was occupying and using the street without any franchise giving it a right to such occupancy and use. "There cannot be neglect without the existence of a corresponding duty." ( Kennedy v. Chase, 119 Cal. 637, [63 Am. St. Rep. 153, 52 P. 33].) It seems clear that the rejection of the evidence heretofore discussed, affecting plaintiff's rights in the street under the stated circumstances, was prejudicial error.

Judgment reversed.

Shaw, J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 1, 1921.

All the Justices concurred.