Kelley v. Alexander

Decision Date09 June 1965
Docket NumberNo. 14387,14387
PartiesSelma KELLEY et vir, Appellants, v. Mrs. Helen C. ALEXANDER, d/b/a Beekman's Roto-Rooter Sewer Service, Appellee.
CourtTexas Court of Appeals

Reid & Taylor, San Antonio, for appellants.

Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for appellee.

BARROW, Justice.

This appeal relates to the volenti non fit injuria concept of assumed risk. Plaintiffs, Selma Kelley and husband, John Kelley, appeal from a summary judgment granted defendant, Mrs. Helen C. Alexander, d/b/a Beekman's Roto-Rooter Sewer Service, in a suit to recover damages sustained by plaintiff Mrs. Kelley when she fell in a hole in her yard which had been dug by defendant's employees. The motion for summary judgment was based on the pleadings and deposition of Mrs. Kelley. 1

On March 26, 1962, defendant was employed by plaintiffs to remove roots from a sewer line on plaintiffs' property. In performing this work, defendant's employees dug a hole 3 X 4 in diameter and about 4 deep in plaintiffs' yard. Mrs. Kelley saw this hole and was afraid that a small child would fall into it, as two neighborhood children about three or four years of age, played in her yard 'continuously.' She furnished a board to an undentified man working on her property and he covered the hole before leaving the premises the first day. She admitted that she had painters and carpenters working on her property at this time and did not know if this man worked for defendant or one of the other craftsmen. She didn't recall telling one of defendant's employees to cover the hole. About 5:00 p. m. on the following day, after the workmen had left, she looked out the window and saw this gaping hole. She testified that she was afraid the children would fall in. There was a large limb from a tree she had trimmed close to the hole, and she decided to drag the limb over the hole to discourage the children from approaching it. In doing so she slipped and fell into the hole. No one was present at the time. Mrs. Kelley admitted that this occurred in broad daylight and that the dangerous condition of the hole was open and obvious to her.

On November 19, 1964, the trial court sustained defendant's motion for summary judgment and entered a take-nothing judgment. On November 30 plaintiffs filed a motion to vacate the judgment and asserted that the 'rescue doctrine' was raised by Mrs. Kelley's testimony. This motion was overruled and plaintiffs perfected this appeal.

Appellants concede that the danger was open and obvious to Mrs. Kelley, but urge that she did not assume the risk thereof under the 'rescue doctrine.' This exception was recognized by the Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (1963), wherein it was said:

'A basic difference between contributory negligence on the one hand, and 'no duty' and volenti on the other, is the question of justification. Whether the plaintiff's conduct was justified may be an evidentiary consideration in deciding that a person of ordinary prudence should, or should not have so acted, but it is not a separate ultimate inquiry or issue. The question of plaintiff's justification is not ordinarily involved in the 'no duty' concept. A person may voluntarily expose himself to a known risk and not be contributorily negligent, depending upon why he exposed himself; i. e., his conduct may have been that of an ordinary prudent person under the circumstances. For example, a mother going into a burning building to save her child, or a person crossing a defective bridge when it is the only way of travel. * * * On the other hand, if the occupier owes 'no duty' to the invitee because the invitee knows and appreciates the danger, or if the plaintiff deliberately and voluntarily encounters a known risk under the volenti doctrine, the plaintiff cannot recover. There may be some exceptions, such as where the plaintiff is motivated by humanitarianism or rescue impulses.'

Under the 'rescue doctrine,' one who attempts to rescue another placed in imminent peril by the negligence of the defendant is not to be found guilty of contributory negligence as a matter of law, nor does he assume the risk incident thereto unless he acts in a rash, imprudent or negligent manner. Sinclair Ref. Co. v. Winder, Tex.Civ.App., 340 S.W.2d 503, wr. ref.; Keystone-Fleming Transport, Inc. v. City of Tahoka, Tex.Civ.App., 315 S.W.2d 656, wr. ref., n. r. e.; Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, wr. ref., n. r. e. The basis of this rule is that the defendant negligently created a situation that provoked the rescue effort and the rescuer's resulting injury was something that could reasonably have been foreseen by the negligent defendant and was a natural and probable result of such negligence. Longacre v. Reddick, Tex.Civ.App., 215 S.W.2d 404, mandamus overruled; Shultz v. Dallas Power & Light Co., Tex.Civ.App., 147 S.W.2d 914, wr. dism. judgm. correct; 40 Tex.Jur.2d, Negligence, § 117; Restatement of Torts, § 893.

It is our opinion that the 'rescue doctrine' has no application in the case at bar. There were no pleadings by appellants to raise this issue of excuse. See Rash v. Ross, Tex.Civ.App., 371 S.W.2d 109, wr. ref. n. r. e. The first time it was raised or injected in the case was after the motion for summary judgment had been heard and the take-nothing judgment entered. This was too late under Rule 166-A, Sec. (c), Texas Rules of Civil Procedure.

Furthermore, we do not believe that the 'rescue doctrine' is raised under the facts in this case. There is no showing that anyone was in imminent peril. No one was present when Mrs. Kelley went out to place the limb over the hole. There is no basis for the 'rescue doctrine' where no one is in imminent danger and the circumstances afford no reasonable basis for believing otherwise. It requires more than a mere suspicion that an accident might happen to justify one to incur an obvious danger on the theory that human life or limb is in imminent peril. 65 C.J.S. Negligence § 124; 38 Am.Jr., Negligence, § 228. This requirement is best illustrated by examining the facts in cases where the doctrine has been applied.

In Sinclair Refining Co. v. Winder, supra, plaintiff was injured when he stepped on a pile of slag on a railroad track while attempting to halt unattended cars rolling downhill toward workers who were unaware of the danger. In the Reddick v. Longacre case, supra, plaintiff was injured when an explosion occurred while he was attempting to rescue a truck driver from a burning truck. In Swift & Co. v. Baldwin, Tex.Civ.App., 299 S.W.2d 157, no wr. hist., the jury found that school children were passing along the sidewalk in the immediate vicinity of a loose sign and were in imminent peril immediately prior to the time plaintiff climbed a ladder to try to secure the sign before it fell on one of the children.

The evidence in this case does not show that Mrs. Kelley voluntarily exposed herself to danger to rescue another person from imminent peril, but rather that she was discharging her duty as owner of the premises in making the premises safe for the small children who she knew frequented same. In doing so she knowingly and voluntarily assumed the risk of falling in the hole dug by appellee's employees. In this situation the volenti doctrine bars her recovery.

The judgment is affirmed.

CADENA, Justice.

I am unable to agree with my brethern in this case and feel compelled to set forth the reasons for my disagreement.

Defendant's answer in this case consisted of a general denial, a general plea of contributory negligence, an allegation that the excavation was open and obvious, and a plea that plaintiff had voluntarily assumed the risk of falling into the open hole. Defendant's motion for summary judgment was based on the pleadings and on plaintiff's deposition.

The summary judgment in favor of defendant cannot be sustained on the theory that plaintiff's deposition established that she was contributorily negligent as a matter of law. The deposition does not establish any failure on the part of plaintiff to exercise due care, and defendant filed no affidavits stating any acts or omissions on plaintiff's part which would amount to negligence. Unless we are prepared to hold that the occurrence of the accident, per se, conclusively established that plaintiff was contributorily negligent, the deposition does not compel the inference that plaintiff failed to exercise due care.

The only possible basis for the rendition of summary judgment in this case is the doctrine of voluntary assumption of risk. Since it is undisputed that plaintiff was aware of the existence of the uncovered excavation and that she realized the danger inherent in the situation, it is only necessary to decide whether the doctrine of voluntary assumption of risk is applicable to this case.

In Halepeska v. Callihan Industries, Inc., 371 S.W.2d 368 (Tex.1963), a majority of our Supreme Court, in an exhaustive opinion by Justice Greenhill, attempted to establish guide lines for the application of the doctrine in Texas. Justice Greenhill divided assumption of risk into two distinct, but not always distinguishable, concepts. The 'no duty' concept or branch of the doctrine is, according to the Halepeska opinion, applicable only where the injury occurs on the land of the defendant and the injured party is on defendant's land as an 'invitee.' The volenti (volenti non fit injuria) aspect of the doctrine, while it may be applicable in the landowner-invitee situation, apparently is the concept which will be applied in all other cases.

In this case, the condition which caused the injury was on the land of plaintiff. Plaintiff was not on the land as the invitee of defendant. It is apparent, then, that we are not concerned with the 'no duty' aspect of voluntary assumption of risk. Defendant must rely on the volenti aspect...

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