Richmond v. Triangle Motors of Dallas

• Decision Date: 16 July 1952
• Docket Number: No. 4882,4882
• Parties: RICHMOND et al. v. TRIANGLE MOTORS OF DALLAS.
• Court: Texas Court of Appeals

Page 172

254 S.W.2d 172

RICHMOND et al. v. TRIANGLE MOTORS OF DALLAS.

No. 4882.

Court of Civil Appeals of Texas, El Paso.

July 16, 1952.

Rehearing Denied Nov. 19, 1952.

Hugh L. Steger, Storey, Sanders, Sherrell & Armstrong, Dallas, for appellant Richmond.

Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant, Indemnity Co Carter & Gallagher, Carrington, Gowan, Johnson & Walker, W. Crozier Gowan, R. Guy Carter and Ben T. Warder, Jr., all of Dallas, for appellees.

McGILL, Justice.

This is an appeal from a judgment of the District Court of Dallas County, 95th Judicial District. Appellant Benjamin S. Richmond was plaintiff in the trial court, appellee Triangle Motors of Dallas was defendant, and appellant insurers Indemnity and Insurance Company was intervenor.

The suit was for damages for personal injuries suffered by plaintiff when he was crushed by an elevator operated by defendant in a building occupied by defendant. Trial was to a jury, but at the conclusion of the evidence the court withdrew the case from the jury and rendered judgment for defendant.

The controlling questions in this case are whether plaintiff Benjamin S. Richmond was guilty of contributory negligence as a matter of law, and whether the doctrine of, volenti non fit injuria is applicable and affords a complete defense to the cause of action asserted by plaintiff.

We have carefully read the entire statement of facts and examined the original exhibits which were sent up. The following is a fair summary, viewed in the light most favorable to appellants, and is taken from their brief.

Plaintiff is a resident of Dallas, Texas, and at the time of his injury in October, 1947, was a plumber employed by Eubanks Plumbing Company. Defendant Triangle Motors of Dallas, is a Texas Corporation, originally incorporated under the name of Dallas Nash Company, but its name was changed by corporate amendment, subsequent to the time of plaintiff's injury, to Triangle Motors of Dallas. Defendant operated an automobile sales and service business at 2019 Pacific Street in Dallas on October 27 and 28, 1947.

Through plaintiff's Requests for Admissions, defendant admitted ordering on October 27, 1947, the unstopping of a drain and the installation of a drain cover on its car-wash rack drain located near the elevator in its building at the rear or north end of the building on the second floor, together with other plumbing repairs on the first floor; and such order was placed with Eubanks Plumbing Company of Dallas. Defendant further admitted that pursuant to such order and 'at the invitation of Defendant' plaintiff Richmond and his helper performed plumbing work on the drain of such wash rack as well as other plumbing work and repairs at its premises on October 27 and October 28, 1947.

Plaintiff and his helper went to defendant's building for the first time in the afternoon of October 27, 1947, in response to defendant's order for their service, and unstopped the drain on the wash rack located on the second floor of the building behind and adjacent to the elevator shaft on that floor. On the following day, October 28, 1947, plaintiff and his helper returned to defendant's building to finish their work and install the cover on the wash rack drain located on the second floor, and plaintiff, while on the second floor, was struck and crushed by defendant's elevator.

On the first day plaintiff's plumbing truck with his tools necessary for unstopping the drain was taken to the second floor on the elevator by a colored operator. The tools used that day, which were carried up on the truck, weighed 65 to 70 pounds. The job on the second floor was completed the first day with the exception of obtaining and placing a drain cover on the wash rack drain.

On the second day, October 28, 1947, plaintiff first returned alone to defendant's place of business and worked on a tank closet on the first floor, leaving to obtain a fitting-he returned about 11 o'clock in the morning with his helper and his truck was parked on the first floor within three feet of the elevator shaft on that floor. Plaintiff and his helper completed their work on the first floor and then plaintiff, after instructing his helper to load the tools in the truck parked by the elevator shaft, took the drain cover which he had brought and walked up the stairs to the second floor to install it on the wash rack. Plaintiff testified there were 31 steps in the stairway from the first to second floor and the wooden stairs were worn and needed replacing.

No tools were needed for a normal installation of the drain cover. When plaintiff attempted to install the drain cover on the wash rack located on the second floor near the elevator shaft, it would not fit due to concrete in the grooves, and Phinney Wallace, an employee of defendant who was with plaintiff on the second floor, suggested that plaintiff get his hammer and chisel to remove the obstruction. Plaintiff walked around the side of the elevator shaft to the corner of the shaft where the guard gate fastening and switch was located and being at the southwest corner of the shaft. Plaintiff testified that when he first reached the corner of the elevator shaft, he stood with his hand resting on the concrete pillar outside the shaft and called to his helper on the first floor. Plaintiff further stated that, from this position just outside the elevator shaft, he looked down to the first floor through the shaft from the second floor and saw what he thought was the bottom of the elevator and could also see the top of his truck parked on the first floor behind the shaft. At the time plaintiff was looking down in this position, the elevator shaft on the first floor as well as on the second floor was open on the three sides away from the wall of the building, with the exception of mesh wire which enclosed the rear or east side and the south side of the shaft on such floors. Plaintiff testified that he expected no danger from a descending elevator and that he thought he was on the top floor of defendant's building.

Plaintiff testified that at such time and while he was standing in this position, his helper was supposed to be putting tools in the back of his truck on the first floor. Hammering in the body shop of defendant located on the second floor near the elevator shaft produced so much noise that plaintiff could hardly hear. In order to hear his helper when he answered, plaintiff testified that he then got down on his lands and knees by the southwest corner of the shaft where he had stood and called to his helper again and that in this position no part of his body was extended into the shaft. From this position plaintiff extended his legs back and assumed a position with the lower portion of his body from his belt down on the floor at an angle away from the southwest corner of the shaft, and with the upper part of his body raised at an angle upward from his waist and supported on his elbows, his left elbow being on the floor about twelve inches back from the edge of the shaft, his right elbow cocked on the angle iron at the edge of and outside of the shaft with some portion of the upper right side of his body resting on a beveled concrete footing near the corner of the shaft; and his head, with reference to the edge of the shaft, was raised and was in a position 6 to 8 inches back from the edge of the shaft. Plaintiff further testified with reference to this position:

'Q. To your own knowledge was any portion of your body extended into the shaft? A. No, sir, to the best of my knowledge there wasn't any part of my body in the shaft.'

In this position, he could see the top of his truck and testified:

'Q. Now, with reference to the position there, that third position you just described, what else did you see looking down into the shaft? A. Could see the bottom of the elevator, what I thought was the bottom of the elevator.'

While in this position, he thought he heard his helper answer him and called for his helper to bring him a hammer and chisel. Still in this position, plaintiff was struck by the elevator descending, the bottom of the elevator first hitting his right arm, jerking him down and then striking and crushing plaintiff across the upper part of his back. Medical testimony showed that plaintiff suffered a fracture of both bones in the right wrist, fractures of the seventh neck vertebra, and fracture of the right shoulder blade, resulting in complete paralysis of his body from the waist down and some paralysis from the neck down. Plaintiff further testified there were no bruises or lacerations on his head. Medical witnesses testified plaintiff has 50% permanent partial disability.

The testimony showed that plaintiff had never been on any floor of defendant's building prior to his injury other than the first and second floors and he testified he was under the impression the building had only two floors.

Plaintiff testified he got down close to the floor while calling his helper because 'you feel safer when you are down low'. On cross examination, he also testified:

'Q. Were you trying to stay out of the elevator shaft? A. Staying back away from it, yes sir.'

The elevator is raised and lowered by pulleys attached to each side of the platform with the top open.

Defendant, through Requests for Admissions filed by plaintiff, admitted that on the dates in question the elevator was under its exclusive management and control and was operated by it.

Defendant admitted the guard gate was open at the time the elevator descended and struck plaintiff.

Defendant admitted the guard gate was open, and that the elevator was being operated by an employee of Defendant, authorized by Defendant to operate such.

Phinney Wallace, an employee of Defendant, testified the switch to the elevator guard on the second floor was propped on the day Plaintiff was injured in such manner that the elevator would operate without the guard gate being properly...