Pogue v. Allright, Inc.

Court of Appeals of Texas

Pogue v. Allright, Inc.

375 S.W.2d 533, 1964 Tex. App. LEXIS 1928

CourtCourt of Appeals of Texas

DecidedFebruary 5, 1964

Docket11142

StatusPublished

Cited by7 cases

This text of 375 S.W.2d 533 (Pogue v. Allright, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pogue v. Allright, Inc., 375 S.W.2d 533, 1964 Tex. App. LEXIS 1928 (Tex. Ct. App. 1964).

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Opinion

*534 ARCHER, Chief Justice.

This is an appeal from a judgment of the Court in favor of defendant, appellee herein, on motion of defendant notwithstanding the verdict, and to disregard certain findings of the jury in a personal injury suit filed by plaintiff, appellant herein, and tried' with the aid of a jury which in response to issues had answered certain issues favorable to plaintiff and fixing the damages at $35,000.00.

Appellant alleged negligence of appellee in failing to properly warn plaintiff of the presence of a man lift hole, through which he fell to a concrete floor below and suffered the serious and permanent injuries complained of.

The defendant answered that plaintiff was walking in an area not open to the general public and without using ordinary care for his own safety fell down the man lift hole and was not using that degree of care that would have been used by a person of ordinary prudence under the same or similar circumstances; that such failure proximately caused the matters complained of by plaintiff; that in going onto the area of the premises plaintiff was either a trespasser or a mere licensee and was not an invitee; that the conditions that existed were open and obvious; that by walking into that area not open to the general public, the plaintiff assumed the risk of such conditions and that the accident was an unavoidable one.

The appeal is’ founded on eleven points assigned as error and are to the effect that the Court erred in overruling plaintiff’s motion to disregard issues Nos. 7 and 8 and' for judgment, because such issues were evi-dentiary only and did not establish any controlling issue of fact as a defense to the primary negligence findings on issues Nos. 3 and 4; are defensive issues to issues Nos. 5 and 6; in overruling plaintiff’s objection to issues Nos. 7 and 8, because there were no pleadings substantiating the submission of this issue and such issue failed to contain the element as to whether or not plain-' tiff realized, or should have realized and appreciated the full extent of the “Danger or Risk,” or whether plaintiff voluntarily put himself in the way of the particular risk, as a result of an intelligent choice; in overruling plaintiff’s objection No. 2(j), because issue No. 8 did not inquire whether plaintiff voluntarily exposed himself to the risk in question as the result of an intelligent choice, because there was no evidence, or that the evidence is insufficient to support a finding that plaintiff knew of the man lift hole, or appreciated the danger of falling into such hole.

The plaintiff in his petition alleged three dangerous features of the premises where he was injured:

“(1) An ‘opening which was unguarded and was being used for a continuous elevator;’ otherwise referred to as an ‘opening’ and said ‘opening’ referred to in the testimony of the witnesses as a ‘manlift hole’;

(2) An inadequate guard;

(3) Inadequate lighting.”

The case was submitted to the jury on 15 special issues.

In reply to Special Issue No. 1, they answered that the defendant did not fail to light the parking lot area.

In response to issues Nos. 3, 4, 5 and 6 the jury found that the defendant failed to give plaintiff such warning of the presence of the man lift hole, as a person of ordinary prudence would have done, and that such failure was a proximate cause of the injuries sustained by plaintiff and that defendant failed to maintain such guard around the opening as a person of ordinary prudence would have done and that such failure was a proximate cause of the injuries.

Conditioned on affirmative answers to is-, sues Nos. 1, 2 and 5 or either of them, the Court submitted issues Nos. 7 and 8 and *535 each was answered in the affirmative by the jury, and read:

“7. Do you find from a preponderance of the evidence that the plaintiff, John W. Pogue, voluntarily exposed himself to such risks as existed at the time and on the occasion in question ?

“8. Was the condition of the wire guard surrounding the elevator shaft open and obvious to the plaintiff, John W. Pogue, just prior to the time he fell?

“If you find from a preponderance of the evidence that the condition was not open and obvious to the plaintiff, John W. Pogue, answer: ‘NO, it was not open and obvious.’

“If you find from a preponderance of the evidence that the condition was open and obvious to the plaintiff, John W. Pogue, answer: ‘YES, it was open and obvious.’

“A condition is open and obvious to a person if such person knows or in the exercise of ordinary care should know of it, and if such person also appreciates or in the exercise of ordinary prudence should appreciate the full extent of the danger involved in its use.”

As may be observed, appellant’s points of error are directed principally to the action of the Court in overruling his motion for judgment and objections to Special Issues Nos. 7 and 8.

We believe that the Court was justified in entering the judgment for defendant, based on the answers of the jury to Special Issues Nos. 7 and 8 and that such issues are not evidentiary but furnished a ■complete defense to the defendant as •against the primary negligence charged in Special Issues Nos. 3, 4, 5 and 6.

Issue No. 8 in inquiring as to the condition of the wire guard surrounding the •elevator shaft, must have had reference to and inquired as to the presence of the elevator shaft or man lift hole.

■ The wire guard was less than 25 inches from the shaft itself There could be no danger in connection with the wire guard, per se, the only danger which could exist arises from the shaft surrounded by the wire guard.

By its answer to Special Issue No. 7 the jury found that the plaintiff voluntarily exposed himself to such risks as existed at the time and on the occasion in question.

Appellant objected to the submission of Special Issue No. 8, because there was no evidence or the evidence was insufficient to support such issue; that an affirmative answer would be so against the great weight and preponderance of the evidence as to require the Court to set the same aside; that such issue is evidentiary and does not inquire as to an ultimate issue of fact and a comment upon the weight of the evidence; that the instructions given by the Court defining an open and obvious condition fails to include the elements that plaintiff voluntarily exposed himself to such risks and as the result of an intelligent choice.

The Court overruled this objection and properly so. Personal Injuries Resulting from Open and Obvious Conditions — Special Issue Submission in Texas, an article by W. Page Keeton, 33 Tex.Law Rev. 1.

Objections were made to the submission of Special Issue No. 7 in much the same manner and content as that to Special Issue No. 8, and overruled by the Court and properly so.

We have hereinabove discussed Issues Nos. 7 and 8 and the manner of such submission and do not elaborate further thereon.

In answer to Special Issue No.

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