Plaintiff below, Floyd B. Thornal, sued Leduma Cia. Mar. S/A (Leduma), Cargill, Inc. (Cargill), and the Kansas City Southern *Page 846 Railway (KCS) for personal injuries allegedly received on May 1, 1974. Leduma was owner of the ship "Costa Flora" which was loading grain from the KCS docks in Port Arthur, Texas. Cargill was the grain dealer and leased the grain storage area, as well as portions of the dock from KCS. The grain was loaded in the ship by longshoremen, of whom plaintiff was one. Plaintiff alleged his injuries resulted from a fall on one of the ramps leading from the dock to the ship.
At the conclusion of the evidence, the court granted an instructed verdict for Leduma. After a jury trial, the court entered judgment on December 14, 1977, that plaintiff take nothing against Leduma, Cargill, and KCS. From this judgment, plaintiff has perfected this appeal.
Plaintiff complains that the court erred in granting Leduma an instructed verdict. It is proper only if there is no evidence to support the submission of a necessary issue, and we must indulge every inference that may be properly drawn from the evidence against the action of the trial court. Echols v. Wells, 510 S.W.2d 916 (Tex. 1974); Anderson v. Moore, 448 S.W.2d 105 (Tex. 1969).
In the entire chain of this transaction from the buying of the wheat in West Texas, to its delivery in Port Arthur by the KCS, to its loading on Leduma's vessel, Leduma had absolutely no duties or responsibilities. The grain was stored in Cargill's facility, loaded on a conveyer of Cargill, by longshoremen, and the ramp involved was owned, maintained, and repaired by KCS. The master and crew of Leduma's ship had no responsibility or indeed right to interfere or assist in any of these functions, except the master could require loading in a manner to give his vessel the proper trim. See Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex. 1976), and authorities cited therein. See also Victory Carriers v. Law,404 U.S. 202, 212-15, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). This point is overruled.
Plaintiff urges that the trial court erred in failing to grant his motion for new trial as to Cargill because the jury's answer to S.I. No. 8 is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In S.I. No. 8, the jury failed to convict Cargill of negligence in failing to sweep off the grain. This point requires that we examine all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
It was plaintiff's theory that grain on the ramp, together with rain, made it very slippery.
The evidence as to which defendant, Cargill or KCS, had the duty to sweep the ramp was conflicting. One witness testified it was impractical to clean up spilled grain until the loading operation was complete. And all witnesses agreed it was next to impossible to load a ship with grain without spilling some on the docks, ramps, and elsewhere. We believe the answer to this issue has support in the evidence, and accordingly overrule this point.
The evidence revealed that several times in the past KCS had repaired the ramp in question and had put cleats and handrails on it. It is undisputed, however, that at the time of plaintiff's alleged injury the ramp had no cleats or handrail on it.
The jury convicted KCS of negligence in several respects in failing to repair the ramp. However, because of the jury's answer to S.I. No. 20, the judgment absolved KCS of liability.
In answer to S.I. No. 20 the jury found that plaintiff's supervisor was aware of the hazard or danger involved in attempting to use the ramp as a walkway.
As previously noted, the judgment in the case at bar was entered on December 14, 1977. KCS argues that the case of Parker v. Highland Park, 565 S.W.2d 512 (Tex. 1978), abolished the "no duty" defense, and since it was not delivered until February 8, 1978, the case at bar is not affected by this decision.
This issue seems to us to be assumption of risk (volenti non fit injuria) which was abolished in Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex. 1975). Assumption of risk is what KCS pled. *Page 847
At any rate it seems to us that in Parker v. Highland Park, supra, at 518, the court held that "no duty" was completely abolished in Farley when the court said:
"The definition (assumption of risk) included three elements: (1) knowledge, (2) appreciation, (3) the voluntary encounter. Greenhill, "Assumed Risk," Sw.L.J. 1, 12 (1966). When Farley abolished voluntary assumption of risk, it terminated the whole doctrine, all three elements. The contention now is that the first and second elements (knowledge and appreciation by the plaintiff) in some way survived Farley and Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex. 1975), and still live under the name of 'no duty.' Voluntary assumption of risk included and is inseparable from no-duty." (Emphasis supplied)
A recent case should be added. We cite it with neither approval nor disapproval, since as far as we are aware the question of when a decision of the Texas Supreme Court applies to pending litigation in various stages has never been directly answered. In Bullington v. Texas Electric Service Co.,570 F.2d 1272 (5th Cir. 1978), a plaintiff sued for injuries sustained in 1972. In July 1975 the trial court entered summary judgment on the "no duty" doctrine. When this case reached appeal, Parker had been delivered, and the appeals court reversed the trial court citing Parker, supra.
We hold that the trial court erred in the case at bar in not disregarding the jury's answer to S.I. No. 20.
Our plaintiff was convicted of contributory negligence, and the jury found that he (plaintiff) contributed 25 percent to the accident, while KCS contributed 75 percent; that plaintiff's damages were $26,280.00. Plaintiff contends for this entire sum arguing that the question of whether his failure to keep a proper lookout was negligence was not submitted to the jury, and the definition of proper lookout did not contain the elements of negligence. We reject this contention because plaintiff did not object to the definition. Tex.R.Civ.P. 272, 274. 3 R. McDonald, Texas Civil Practice, §§ 12.28 and 12.29 (Rev. 1970). All points of error not addressed in this opinion are overruled.
We now proceed to enter the judgment that should have been entered. It is ordered, adjudged, and decreed that plaintiff appellant Floyd B. Thornal shall recover of and from the defendant, Kansas City Southern Railway, $19,710.00, nothing of and from defendant Leduma; nothing of and from the defendant, Cargill, Inc. All costs are taxed against KCS.
AFFIRMED in part; REVERSED and RENDERED in part.