Triangle Motors of Dallas v. Richmond, No. A-3935

• Court: Supreme Court of Texas
• Writing for the Court: CALVERT
• Citation: 152 Tex. 354,258 S.W.2d 60
• Parties: TRIANGLE MOTORS OF DALLAS v. RICHMOND et al.
• Decision Date: 22 April 1953
• Docket Number: No. A-3935

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258 S.W.2d 60 152 Tex. 354 TRIANGLE MOTORS OF DALLAS
v.
RICHMOND et al. No. A-3935. Supreme Court of Texas. April 22, 1953.
Rehearing Denied June 3, 1953.

[152 Tex. 355]

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Carter, Gallagher, Roberts & Jones, R. Guy Carter, Ben T. Warder, Jr., Carrington, Gowan, Johnson & Walker and W. Crozier Gowan, Dallas, for petitioner.

Storey, Armstrong & Steger, Hugh L. Steger and Strasburger, Price, Kelton, Miller & Martin, Dallas, for respondents.

CALVERT, Justice.

Benjamin S. Richmond was severely injured when he was [152 Tex. 356] hit by a descending elevator at Triangle Motors' place of business. At the conclusion of the evidence in Richmond's suit for damages, the trial court withdrew the case from the jury and rendered judgment for the defendant. The El Paso Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for trial. Chief Justice Price dissented. 254 S.W.2d 172.

Triangle Motors asserts here that the Court of Civil Appeals erred in holding that there were questions of fact raised by the evidence, contending, in this respect, that the trial court properly withdrew the case from the jury because the evidence showed conclusively and as a matter of law that: (1) The plaintiff was guilty of contributory negligence which was a proximate cause of his injuries. (2) The plaintiff assumed the risk of injury and was barred from a recovery by the doctrine of volenti non fit injuria. (3) The plaintiff was a mere licensee or trespasser to whom the defendant owed no greater duty than not to intentionally or purposely injure him. (4) The defects or conditions upon which the plaintiff sought to predicate liability were open and obvious and the defendant therefore owed him no duty with respect thereto. A proper determination of these law questions must hinge on an acceptance of the evidence and the inferences therefrom in their aspects most favorable to the plaintiff's case and a discarding of contrary evidence and inferences. White v. White, 141 Tex. 328, 172 S.W.2d 295; King v. King, Tex.Sup., 244 S.W.2d 660. They need not be determined in the order in which they have been enumerated.

The record reflects that Triangle Motors, operator of a sales and service business in a four-story building in Dallas, engaged the services of Richmond, a plumber, and his helper, to unstop a wash rack drain located on the second floor of the building, to install a cover thereon and to make certain other plumbing repairs on the first floor.

On the first day of his work Richmond and his truck containing his tools were carried on the elevator to the second floor of the building where he completed the task of unstopping the wash rack drain. On the second day he first gave his attention to the tasks on the first floor, and having completed this work he left his truck containing his tools on the first floor near the elevator shaft and ascended a stairway to the second floor for the purpose of installing the cover on the wash rack drain. Discovering[152 Tex. 357] that he needed a hammer and chisel to properly install the cover he went to the elevator shaft to call down to his helper to bring the tools. The front of the shaft normally was barred by a wire gate with a closing switch or device that permitted the operation of the elevator only when the gate was closed, but on both of the days on which the plaintiff worked the gate on the second floor was open and the switch was blocked or propped so that the elevator would continue to operate.

The plaintiff approached the open shaft, placed his hand against a concrete pillar forming the southwest corner thereof and looked down the shaft. He could see the top of his truck and thought he saw the floor of the elevator resting at the first floor level. Standing thus he called to his helper but was unable to make himself heard above the din and noise of hammering in the body shop on the second floor. He

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then got down on his hands and knees and called down the shaft, and being even then unable to make himself heard he finally laid down on the floor with his hand against the concrete pillar and the upper part of his body and head supported on his elbows in a raised position, his left elbow being about twelve inches back from the shaft and his head six to eight inches back from the shaft. While thus situated the elevator descended from the floor above, the bottom of the elevator first striking his right arm thereby jerking his body down and hitting and crushing his right shoulder and the upper part of his back.

The defendant's position that Richmond was a licensee at the time and place of his injury is based...