Aрpellants Mildred Thomas, individually and as next friend of her four minor children, and Willis Thomas, Jr., brought this suit for damages for the death of their husband and father allegedly resulting from the negligence of appellee T. C. Bate-son Company, Inc. and the gross negligence of Mobley-Speed Cement Contractors. The latter company is a partnership composed of H. B. Mobley and Bert W. Speed. The appellees will hereinaftеr be referred to as Bateson and Mobley-Speed respectively.
Bateson was the general contractor and Mobley-Speed a subcontractor engaged in the construction of a structurе for the Danciger Research Laboratory connecting the University of Texas Southwestern Medical School with Parkland Hospital in Dallas, Texas. Willis Thomas, now deceased, was an employee of Mоbley-Speed.
After appellants had rested in the production of evidence appellees made motions for instructed verdict. These motions were sustained and judgment accordingly rendered that аppellants take nothing.
FACTS
Thomas was employed by Mobley-Speed to operate a “cement buggy.” The buggies being used on this job would pick up wet cement loads from a hoist located in a corner, then transport the cement to various points to be poured as needed.
The buggy operated by Thomas was 46 inches wide. There were two front wheels, one on each side of the machine, and two smaller wheels close together un *388 derneath the rear. On the occasion in question Thomas was working on the fourth floor operating a buggy on a pathway composed of mats which were laid on a ramp. This pathway of mats was eight feet wide except at turns in the pathway when it narrowed to a width of only four feet, for the eight foot mats could not be laid around a curve. The pathway was too narrow to pеrmit the buggies to be turned around after they had delivered their loads of cement. It was necessary to back them down the narrow ramp. Only one buggy at a time could go up and down the ramp.
Thomas was backing the buggy down the ramp. At a point where the ramp was only four feet wide he and his buggy went over the side into a stairwell. Thomas fell four floors- to his death. There was wet concrete on the ramp. There is evidence thаt Thomas did not drive the right outside wheel of his buggy over the side, but that the wheel slipped off the four foot ramp and the buggy flipped over.
At the time Thomas was moving slowly. He had not worked on this particular job before. On this occasion he had made only two trips up and down the ramp.
There were no guard rails, toeboards, or any other protective devices at the point where Thomas fell into the stairwell.
In evidencе were contracts between the State of Texas and Bateson, the general contractor, and between Bateson and Mob-léy-Speed, the subcontractor.
OPINION
1. In re Bateson.
Willis Thomas was an employee of Mоbley-Speed, a subcontractor. But Bate-son, the general contractor in control of the premises, owed a duty to employees of subcontractors to exercise ordinary care to keep the premises in a reasonably safe condition. Smith v. Henger,
In order to uphold the court’s action in directing a verdict for appellees we must be able to hold correctly as a matter of law that the record contains no evidence of probative valuе that Bateson was negligent in discharging its said duty. This means that there were no fact issues to be determined by the jury. In deciding the question all of the evidence and the inferences therefrom must be viewed in a light most favorable to the losing party. Harvey v. Elder,
In three points of error appellants contend that the record discloses fact issues (1) as to whether Bateson failed to live up to its common law and contractual duty to furnish such reasonable safety features as would have prevented the accident—that is, whether Bateson was guilty of negligence; (2) as to whether Thomas knew, understood, fully аppreciated and voluntarily undertook the risk that resulted in his death; and (3) whether all of appellants have been damaged by his death. We agree with appellants.
In two counterpoints Bateson asserts that appellants did not overcome the “no duty” doctrine in that they failed to produce evidence that the dangerous condition for which they seek to hold Bateson responsible was not so open and obvious that Willis Thomas knew or should be charged with knowledge and appreciation thereof; and (2) Willis Thomas was guilty of contributory negligence as a matter of law. We do not agree with appellеe Bateson.
In Halepeska v. Callihan Interests, Inc.,
It is interesting to note that in an article in 20 Southwestern Law Journal 13 Justice Greenhill says, “It is the writer’s opinion that the danger must be so obvious that anyone could recognize and apрreciate it as a danger, i. e. so plain that any fool could plainly see.”
In applying the above principles to the instant case we have concluded that the facts do not, as a matter оf law, bring the case within the concept of the no duty doctrine. We cannot say as a matter of law that Thomas knew and appreciated the risk of his buggy slipping on wet cement so that one of the side wheels went off the narrow mat, plunging Thomas to his death four floors below. Neither can we say that the danger was so open and obvious that Thomas can be held as a matter of law to have had knowledge of the danger.
Thomas knew or may be charged with knowledge of the existence of the stairwell. This is a condition. But we agree with appellants that it is the danger, not the condition, which must be open and obvious. And what wаs not open and obvious under the record before us was a combination of factors which together constituted the danger. These factors are a narrow ramp; a slippery condition on the rаmp caused by spilled cement (How long had the spilled cement been there? Did Thomas have knowledge of its presenpe? Did he have knowledge that the wheel might slip on it?); an elevated ramp; the faсt that there was no way to turn the buggy around; the fact that the ramp at the point of the accident was only two inches wider than the buggy and the fact that he had to back his buggy down the ramp and make a turn at the samе time. Certainly Thomas must have had knowledge of some of these factors -considered separately, but can it be said that as a matter of law he had knowledge of the danger which he faced when the factors are considered together? We think not under the record before us.
It is to be remembered that Thomas had made only two trips up and down the ramp. This is a matter to be considered. Wesson v. Gillespie,
We shall not further lengthen our opinion by additional discussion of the “open and obvious” problem. We shall merely content ourselves by citing other cases which seem to us to lend support to our conclusions. Dunlap v. Executive Inn Motor Hotel Corp.,
In our opinion there was evidence of the negligence of Bateson. As already stated there were no guard rails, toeboards or other safety devices near the stairwell. The ramp at the curve adjacent to the stairwell was only two inches wider than *390 the buggy which Thomas was operating. There were other factors.
We sustain appellants’ first three points and overrule Bateson’s two сounterpoints.
2. In re Mobley-Speed.
Mobley-Speed carried workmen’s compensation insurance. Appellants filed their claim and the compensation has been paid. Consequently in order to obtain additional damаges in a common law action it is necessary for appellants to prove gross negligence against Mobley-Speed. Texas Constitution, Art. XVI, Sec. 26, Vernon’s Ann.St., and Art. 8306, Sec. 5, Vernon’s Ann.Civ.St.
In their fourth point of error aрpellants assert that the court erred in holding that there was no evidence of gross negligence on the part of Mobley-Speed. We do not agree with appellants.
Our Supreme Court has held that in cаses of this character gross negligence has been defined as “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifferеnce to the right or welfare of the person or persons to be affected by it.” Sheffield Division, Armco Steel Corp. v. Jones,
Applying the above principles to the facts in this case we have concluded, after a careful study of the record, that there is no evidеnce of gross negligence on the part of Mobley-Speed. Appellants’ fourth point is overruled.
The judgment of the trial court is reversed as to Bateson and remanded for a new trial. The judgment as to Mobley-Speed is affirmed.
Reversed and remanded in part and affirmed in part.