Sinclair Refining Co. v. Winder, 3773

• Decision Date: 10 November 1960
• Docket Number: No. 3773,3773
• Citation: Sinclair Refining Co. v. Winder, 340 S.W.2d 503 (Tex. Ct. App. 1960)
• Parties: SINCLAIR REFINING COMPANY, Appellant, v. Clark Virgil WINDER, Appellee.
• Court: Texas Civil Court of Appeals

Page 503

340 S.W.2d 503

SINCLAIR REFINING COMPANY, Appellant, v.Clark Virgil WINDER, Appellee.

No. 3773.

Court of Civil Appeals of Texas, Waco.

Nov. 10, 1960.

Rehearing Denied Dec. 1, 1960.

James W. Yancy, Jr., Sam L. Sterrett, Jr., Houston, for appellant.

Saub, Walker & Hammond, Houston, for appellee.

WILSON, Justice.

Plaintiff alleged he was employed by a railroad engaged in switching operations on appellant's premises, when he stepped on a pile of slag on appellant's tracks; that he fell on the track and a car rolled over his finger.Defendant's pleading was a general denial.

Plaintiff admitted, and the jury found, that he knew of the unsafe condition of the track.The jury found defendant's negligence in maintaining the pile of slag was a proximate cause of his damages.We think the record establishes as a matter of law that the condition was open, obvious, and known to both parties.Appellant says it was therefore entitled to judgment.Appellee contends that since there was evidence to establish that at the time of his injury he was attempting to halt unattended cars rolling downhill under a humanitarian impulse to prevent injury to workers who were unaware of the danger, the doctrine of volenti non fit injuria should not apply.

Whether there is a duty on the owner of premises to take precautions against injury to an invitee from dangers of which the latter is aware, depends on whether the invitee 'voluntarily encounters' the dangerous condition 'of his own free will and as a result of intelligent choice.'In determining the owner's duty, the conduct of the invitee must be looked to.The owner's knowledge and appreciation is only the initial inquiry.If this is established, knowledge and appreciation by the invitee must be shown.There yet...