volenti doctrine in Texas

1967E.g., Terry v. Boss Hotels, Inc., 376 S.W.2d 239 (Mo.1964) (plaintiff slipped and fell on dance floor, which he admitted he realized was too heavily waxed; proper to submit the defense to the jury); Wood v. Kane Boiler Works, Inc., 150 Tex. 191 , 238 S.W.2d 172 (1951) (inspector killed when pipe burst during tests; defense failed for want of showing full appreciation of risk).

1953Moreover, one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved or to have ‘put himself in the way of’ the danger ‘of his own free will and as the result of an “intelligent choice” so as to bar a recovery under the test of the volenti doctrine laid down in Wood v. Kane Boiler Works, 150 Texas 199 , 238 S.W. 2d 172, 175 .

1977On the other hand, the volenti doctrine is an affirmative defense. 371 S.W.2d at 379 .

1977In Halepeska v. Callihan Interests, Inc. (Tex.1963) 371 S.W.2d 368 our Supreme Court said on page 379: “The volenti doctrine is an affirmative defense. ‘Volenti’ is a contraction of the Latin phrase, volenti non fit injuria, which means legally that a plaintiff may not recover for an injury to which he assents; that a person may not recover for an injury received when he voluntarily exposes himself to a known and appreciated danger.

1973But many of the courts say as did the Vermont court in the case of Packard v. Quesnel, . . . ( 112 Vt. 175 , 22 A.2d (164) 167): ‘We do not believe it important to classify this bar.

1957But many of the courts say as did the Vermont court in the case of Packard v. Quesnel, supra [ 112 Vt. 175 , 22 A.2d [164] 167]: We do not believe it important to classify this bar.

1967Triangle Motors of Dallas v. Richmond, 152 Tex. 354 , 258 S.W.2d 60 .

1967Triangle Motors of Dallas v. Richmond, 152 Tex. 354 , 258 S.W.2d 60 .

1964We believe appellant’s contention for the application of the volenti doctrine to the record made here is further foreclosed against it by Fabens Ice Company v. Kosinski, Tex.Civ.App., 339 S.W.2d 546 (N.R.E.) and Sinclair Refining Company v. Winder, Tex.Civ.App., 340 S.W.2d 503 (writ refused).

1963Sinclair Refining Co. v. Winder, 340 S.W.2d 503 , Tex.Civ.App. 1960, writ refused.

1953It follows as a matter of course, that it will be held as a matter of law also that entering or failing to leave the vehicle under the circumstances is a proximate cause of any injuries sustained by reason of the intoxication of the driver.” Schiller v. Rice, 151 Texas 116 , 246 S.W. 2d 607 , loc. cit. 613-614.

1953It follows as a matter of course, that it will be held as a matter of law also that entering or failing to leave the vehicle under the circumstances is a proximate cause of any injuries sustained by reason of the intoxication of the driver.” Schiller v. Rice, Tex.Sup., 246 S.W.2d 607 , loc. cit. 613-614.

1974In Messick v. General Motors Corporation, 460 F.2d 485 (5th Cir. 1972), the court was of the opinion that Comment n of Sec. 402(a) of the Restatement of Torts, 2d ed., required the grafting of elements of contributory negligence to the doctrine of volenti.

1974In Messick v. General Motors Corporation, 460 F.2d 485 (5th Cir. 1972), the court was of the opinion that Comment n of Sec. 402(a) of the Restatement of Torts, 2d ed., required the grafting of elements of contributory negligence to the doctrine of volenti.

1970Ellis v. Moore, supra. We interpret the finding in response to Special Issue No. 21 as a failure to find as a fact the existence of an essential ingredient of the volenti defense, to-wit, that Cantrell had full knowledge and appreciation of the greater danger.

1970In Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963), the Court, after recognizing that the volenti doctrine should be kept within justifiable limits, narrowed the dangerous activities (as contrasted with static conditions) to which one would voluntarily expose himself to those which, generally speaking, are rigidly circumscribed and easily predictable.

1967E.g., Terry v. Boss Hotels, Inc., 376 S.W.2d 239 (Mo.1964) (plaintiff slipped and fell on dance floor, which he admitted he realized was too heavily waxed; proper to submit the defense to the jury); Wood v. Kane Boiler Works, Inc., 150 Tex. 191 , 238 S.W.2d 172 (1951) (inspector killed when pipe burst during tests; defense failed for want of showing full appreciation of risk).

1967E.g., Terry v. Boss Hotels, Inc., 376 S.W.2d 239 (Mo.1964) (plaintiff slipped and fell on dance floor, which he admitted he realized was too heavily waxed; proper to submit the defense to the jury); Wood v. Kane Boiler Works, Inc., 150 Tex. 191 , 238 S.W.2d 172 (1951) (inspector killed when pipe burst during tests; defense failed for want of showing full appreciation of risk).

1964The Fort Worth Court of Civil Appeals in American Cooperage Company v. Clemons, 364 S.W.2d 705 (N.R.E.) has held that: “Knowledge of the very hazard which does result, and appreciation of the danger thereof, is essential to the applicability of the volenti doctrine.” There is no suggestion in our case that appellee had knowledge that the pressman Lunsford, who testified he was doing the work of two and sometimes three men would throw the bale of cotton off without looking over the edge of the platform to see who was around the truck or that he would do so without some sort of warning.

1964We believe appellant’s contention for the application of the volenti doctrine to the record made here is further foreclosed against it by Fabens Ice Company v. Kosinski, Tex.Civ.App., 339 S.W.2d 546 (N.R.E.) and Sinclair Refining Company v. Winder, Tex.Civ.App., 340 S.W.2d 503 (writ refused).

1963A case decided subsequent to the decision in McKee, General Contractor v. Patterson, 1954, 153 Tex. 517 , 271 S.W.2d 391 , upon which the Cooperage Company strongly relies, involved somewhat the same question of the instant case in that the negligence of the defendant existed through the defendant’s failure to keep a proper lookout for the safety of plaintiff.

1963A case decided subsequent to the decision in McKee, General Contractor v. Patterson, 1954, 153 Tex. 517 , 271 S.W.2d 391 , upon which the Cooperage Company strongly relies, involved somewhat the same question of the instant case in that the negligence of the defendant existed through the defendant’s failure to keep a proper lookout for the safety of plaintiff.

1963The volenti doctrine was brought to-prominence in Texas in Levlon v. Dallas Ry. & Terminal Co., 117 S.W.2d 876 , Tex.Civ.App.1938, writ refused.

1963The volenti doctrine was brought to prominence in Texas in Levlon v. Dallas Ry. & Terminal Co., 117 S.W.2d 876 , Tex. Civ.App.1938, writ refused.

1953It has been said that ‘Intoxication temporarily destroys the faculties essential to safe driving, and this is of such common knowledge that no one with sense will submit to the peril of riding with such a person.’ Hemington v. Hemingtbn, supra ( 221 Mich. 206 , 190 N.W. [683] 684); Taylor v. Taug [ 17 Wash.2d 533 , 136 P.2d 176 ], Moreover, one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved or to have ‘put himself in the way of’ the danger ‘of his own free

1953It has been said that ‘Intoxication temporarily destroys the faculties essential to safe driving, and this is of such common knowledge that no one with sense will submit to the peril of riding with such a person.’ Hemington v. Hemingtbn, supra ( 221 Mich. 206 , 190 N.W. [683] 684); Taylor v. Taug [ 17 Wash.2d 533 , 136 P.2d 176 ], Moreover, one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved or to have ‘put himself in the way of’ the danger ‘of his own free

1953It has been said that ‘Intoxication temporarily destroys the faculties essential to safe driving, and this is of such common knowledge that no one with sense will submit to the peril of riding with such a person.’ Hemington v. Hemingtbn, supra ( 221 Mich. 206 , 190 N.W. [683] 684); Taylor v. Taug [ 17 Wash.2d 533 , 136 P.2d 176 ], Moreover, one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved or to have ‘put himself in the way of’ the danger ‘of his own free

1953It has been said that ‘Intoxication temporarily destroys the faculties essential to safe driving, and this is of such common knowledge that no one with sense will submit to the peril of riding with such a person.’ Hemington v. Hemingtbn, supra ( 221 Mich. 206 , 190 N.W. [683] 684); Taylor v. Taug [ 17 Wash.2d 533 , 136 P.2d 176 ], Moreover, one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved or to have ‘put himself in the way of’ the danger ‘of his own free