*1 CORPORATION, Petitioner, W. J. &
v. BALL, Respondent.
M. A.
No. A-1 1629. Sherman, Ralph Elliott, Nall, Elliott & Supreme Court Texas. petitioner. 11, Jan. 1967. Sherman, re- E. Hughes, Charles Rehearing March Denied 1967. spondent. GREENHILL, Justice. injured when the wheel A. Ball
M. employee operated an being of a truck Corporation rolled of the & W. J. was to his left hand. Trial over been agent to have found defendant’s which con- acquitted negligent. found, among tributory negligence the risk. Ball had assumed things, other judgment, parties motions for Both filed granted. plaintiff’s motion was and the affirmed. The Court Civil 616. S.W.2d operated the corporation The defendant Denison, Texas. Stop in Truck Texoma tires, trucks, repaired flat fuel for sold repairs. The B & Ga- and made minor J separate business, located rage, a Stop. The yards Truck from the about garage at the worked bought six and had for about weeks days the accident. about three before slept and was available garage at the Stop. Truck at the work pulled question, night in On the Stop. The Truck vicinity into the belt truck’s fan have his driver wanted to repaired which a tire tightened and to have then went going flat. The driver “they” Garage to ask the B & J he could. repair fan said belt. over turned The driver then Gilbert, Billy employee of the defendant an repair the Stop, about to Truck who set Meanwhile, Ball took his tools tire. Stop. to the Truck walked over *2 The vehicle was involved described as a it.” practice “hold It was Gilbert’s not to tandem axle truck tractor dual use a with wheels “scotch block” or chock to check on each side of each here- axle. As will be the watching step- and he was his discussed, son, inafter number Harvey, the and location Bobby step on the ladder of the is not made The only wheels clear. assistance. other The time Gilbert tractor, tractor, truck here called the saw Ball was after Ball was hurt. pulled a trailer loaded with The brick. Bobby Harvey testified that was all that flat was on a left-rear tire of the trac- said between Ball and Gilbert that Ball was tor. Apparently there were four wheels could start the fan the work on belt when and at tires the left rear. The in tires tan- truck was on the blocks. He stated that dem were about 10 inches wide and when Ball slipping saw the wheels against was about 5 or 6 inches between the tires. block, the grabbed (Ball) he the 4x6 block Gilbert had the tractor and backed trailer the at- scotch block and [not chock] into an “grease enclosed stall.” axle The of tempted push it the wheel from the tractor too low for the was use of blocks, rear. up The truck came on the jack. Gilbert was therefore and the plaintiff’s hand went under back the tractor’s rear wheels onto two wheel. caught plain- tire jack blocks of wood so a could be used. tiff’s hand. Each block of 2x6 consisted two inch Ball testified that when he saw what pieces of together, making wood nailed thus do, Gilbert trying was he told Gilbert 4 x They 6. long. about feet were two he help would Ball him. said this conver- top piece give a little shorter to was sation occurred the two men when were upward. the blocks a slant Gilbert had standing said, in of the tractor. He front placed 15-year-old Bobby his stepson, Har- “I him, told him help get I would in vey, on a step small along ladder the wall of up on back it those blocks.” grease stall to assist him. Gilbert He admitted that not ask him Gilbert did mirror, Bobby watched in the rear view help. picked Ball testified he signal was to Gilbert when up a scotch on the block which was floor. wheels on blocks. were Gilbert had It piece was a of x wood about made attempt one unsuccessful back the long. stooped inches He down near (the onto the blocks blocks had left-rear wheels of the tractor held slipped in an effort effect traction block in his left hand. the truck When against tire) Ball when blocks, put backed Ball on the help. volunteered block in “the not front of Stop When Ball the Truck arrived at clear At to. which wheels Ball referred truck, vicinity put of he tools his it “the left one he said was front down in He front of the cab of the tractor. tractor”; e., dual of i. front of was to begin the fan belt work on when forward At another wheels of tandem. got Up Gilbert on the wheels the blocks. place he it the “front the rear said was point, testimony the witnesses wheel.” his hands Ball also testified that agreement. point, was in After were between the two left-rear wheels. agree. three witnesses unable to were or drawing There is no picture Billy Gilbert, evidence, employee get defendant’s are unable to we tractor, convey picture of the facts who was the cab an accurate event, any at In concerning saw Ball his tools the front wheels. with tractor. told Ball said he hollered Gilbert to “hold it.” He wheels, squatted Though Ball near the repairs start with when him; help, thought on the He not ask Ball for could see blocks. Gilbert he heard help, just did not testified that “I know he was me at him . . . hold did not at him to when I hollered thereafter hear shout they’ll Ball said said, blocks, scoot.” you.” and I’ll it it scotch He doing so was he was what looking think “It looked like he [Gilbert] if it would He asked dangerous. me.” There in the at was some noise the block into slide been safer to grease room motor have when truck’s diesel hands. placing with accelerated, the wheels instead but Ball said that way get answered, can hurt “You idling thought motor time and he *3 at this was dangerous to just too”; be it as Gilbert that would would hear him. He said Gilbert it would there” as your hand “over applied had his he at stick brakes when hollered side.” it in from the be to “scoot attempted Gilbert to hold it to when he put block in front “the wheels.” immediately before that jury found said, spun Suddenly, and his stop to Ball shouted to Gilbert the accident hand and block were carried under the hear not vehicle, did but that Gilbert wheel. place At another Ball testified that for Ball’s Ball; to failed listen that Gilbert he supposed that back the truck rolled on Gil- negligence this not was shout down hand and twisted the block and his to failed that part. It found Gilbert bert’s seriously under tire. Ball’s hand was and that keep proper a lookout Ball injured. cause; that Gil- proximate a failure was ordinary knew, by the exercise bert It is difficult to ascertain from the State- known, in Ball that was should have care exactly ment Facts He Ball what did. failed danger, and that position of Gilbert testified happened several times it all that situation; dangerous Ball of his to warn- fast hap- so really did not know what proxi- and negligence this constituted that pened. When he demon-- was asked to corporation cause; plaintiff that the mate did, strate what he or to show on a black- which system lifting vehicles operated a block, wheels, board where scotch that by, and dangerous persons to close was people were, 4x6 blocks and the proximate cause. negligence this was and held block “this way,” put that,” it under “like “I come issues, the contributory negligence theOn down put this,” “by it here like not plaintiff was Ball jury that wheel,” “about a foot in over between the blocks place to negligent in there,” put and that he the block “between the circum- truck next both say those that go- stances; in negligent was truck already been backed onto on rear the truck ing near about the stopped, and had he had question; in the occasion then shouted to Gilbert to “hold it” when notify Gilbert not fail he squatted, facing the left-rear tandem next block going he was wheels, and shoved the scotch block with to the truck wheels. his left hand into the wheels. The wheels spun then and caught hand, block risk, regard With all. It is not clear whether the wheels on an invitee defend- found that say forward or backward. Ball did not premises, assume and we shall ant’s way which spun; it immedi- found that Harvey said further was. accident, in a ately Ball was before the “backward.” Respondent Reply Ball' danger; that the position of Brief takes the that it is immaterial actually realized the knew and which way the wheels moved. place the blocks next attempting as- wheels, “plaintiff Ball said he and that operation had done same truck attempt- any, if danger, thought thousands of times. He it the risk of sumed next necessary “to the wooden blocks do [insert block] wheels”; keep it rolling from “the blocks.” He off place attempting to you moving stated that “when while back on start open blocks under the truck wheels and that he “assumed the risk of obvious danger, any, . . . the wooden blocks next to the truck wheels.” McKee,
This Contrac Court General Patterson, tor v. 153 Tex. 271 S.W.2d inquiring is true that there is no issue clearly 391 (1954), are two stated there as whether ex- voluntarily legal theories, wholly plain posed aside from the himself to the risk. On the other deny hand, contributory negligence, tiff’s own undisputed ing liability against in a suit an owner or to do per- volunteered the acts which he occupier brought of land an invitee for formed. He admitted that Gilbert did injuries. said, help This Court “One ask for his and that he volunteered it. [of judicial these two rests con objection on There was no to the issue which theories] cept duty any inquired that there is no breach of “plaintiff whether assumed the *4 landowner The other owes his invitees. danger.” risk of the circum- to, Under the qut stances, fit arises of the doctrine of volenti non opinion finding it is our the that injuria voluntary risk— encountering plaintiff of that the the the assumed risk of — regarded neg which is danger as a defense to all in attempting the wooden ligence actions. In this both theories state blocks next to the truck is the wheels recognized.” are equivalent 271 at 393. These voluntarily S.W.2d finding of that Ball legal explained two again exposed theories were himself to the risk in Halepeska Inc., Interests, v. Callihan 371 next the (Tex.Sup.1963). S.W.2d 368 wheels.
The Court 'of Civil treated plaintiff Counsel for that contends duty” case as a “no It and relied case. cited governed by case is as cases such upon Heldenfels, Richmond, Hernandez v. 374 S.W.2d Triangle of Motors Dallas v. (Tex.Sup.1963), 196 which held in “no 354, that 152 Tex. (1953), 60 S.W.2d activity duty” involving activities, cases the 191, Works, Wood v. Kane Boiler 150 Tex. generally rigidly must be circumscribed and (1951). S.W.2d 172 In each of those easily predictable. Also cited was McEl plaintiff cases the of dan- was aware some henny 319, Thielepape, v. 155 Tex. ger appreciate par- but did not know or the (1956), duty” S.W.2d 940 a “no case involv danger. ticular In Triangle Motors the ing a case, limited amount of motion. plaintiff appreciated the the
of falling through open, unguarded an opinion It is our that the facts elevator shaft and the had lain down on jury findings the bring within this case floor danger. to avoid that He did second of the in Mc two doctrines set out know the elevator was above him. It was Patterson; e., Kee v. i. that volenti non of held that he did not assume the risk from injuria. requirements for such injured, by which he being struck fit (1) defense are has knowl descending Similarly, elevator. v.Wood edge dangerous of con constituting Works, facts Kane Boiler knew activity; dition or (2) knows the con appreciated dangers certain involved ap activity dangerous; (3) dition or work, in his but injury resulted from a preciates the or extent of the dan nature knowledge. defect about which he had no exposes ger; (4) voluntarily him case, plaintiff himself opinion In this danger.
self to this is our might substantially jury findings knew and realized set out above get in the requirements. fulfill move. He had told Gilbert these blocks. accident, back it on the immediately truck and to before the put the attempted to danger; that he actual “to ly or chock under attempt scotch block knew realized the blocks.” keep rolling it from off the blocks next to the truck argu- would move overruled trial court before The risk was that the wheels they jury; not re- He testified ment to come off the blocks. reporter operation writing by as court regard duced while he get hand- particularly person opinion filed until our had been dangerous, a after by “scooting block ed down. hurt either block there by placing wheels” Procedure, Rule Texas Rules of Civil realized that with hand did. He as he objections authorizes the dictation of forcibly moved when blocks would be subsequent charge their reduction Referring to the 4x6 wheels moved. be suf- writing. says The rule that will you start blocks, he testified “when “filed objections are ficient the written blocks, they’ll backing up on those scoot.” in the be included with clerk in time to blocks, As to these was entitled Assuming, transcript.” [Emphasis added.] Harvey testimony believe consider may deciding, without that we Ball was brought atten- objections to our these thus push 4x6 blocks under one point time, the is still not tion for the first moving wheel as it was in reverse when objections did not relate well taken. The circumstances, injured. it is Under the conclusion submission of the sup- opinion fairly our the evidence they the risk. Nor “actually
ports jury finding suggest inquiry be whether that the should attempt- knew the danger and realized *5 exposed plaintiff voluntarily himself the blocks next to the objections were that the risk. The made wheels,” danger, and that he “assumed issue on assumed risk the submission any, a submission con- would constitute double (cid:127) next to the truck a tributory negligence; constitute would obvious”; “open double submission of jury having The found that jury; would serve to confuse plain- danger, a alternative, evidence, know, no appreciate tiff as- and did support its sub- insufficient evidence to exposed sume (voluntarily the risk himself mission. risk), recover. cannot court, therefore, The trial have should actually knew The granted the judg- defendant’s motion for and realized ment jury. on the verdict of the to the truck the blocks next the find- opinion and we adhere our judgments of the are courts below the risk Ball “assumed ing of reversed, judgment is here rendered attempting to ... nothing. take next to place the wooden blocks finding legal equivalent to wheels” is the ON FOR REHEARING MOTION voluntarily exposed himself risk. On motion rehearing, counsel for says opinion stating our is in error in rehearing is overruled. motion objections special there were no inquiring issue as to whether NORVELL, Justice. danger.” No ob-
“assumed risk of jections transcript contained in the supplemental The tendered I concur. sent the Court of Civil transcript Court can- comes too This late. brought to this Counsel now tenders Court. record upon a case different not decide transcript supplemental Rule Ap- Civil in the Court of than filed Procedure, showing Texas Rules of Civil peals. exceptions objections His to the issue. reporter opinion. the court in this SMITH, J., been dictated to concurs