(dissenting).
I would hold that Abalos has produced evidence which would warrant a jury finding that Morgan failed to exercise due care to protect Abalos from the danger of the pumping unit. Morgan represented the owner of the pump and occupier of the premises. His duty to Abalos was that owed to a business invitee. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950). The scope of that duty is at least as broad as is stated in § 343 of the Restatement (Second) of Torts (1965). If under all of the circumstances the occupier should realize that the condition or use of the premises involves an unreasonable risk of harm to the invitee, the occupier must exercise reasonable care to protect the invitee against the danger. If those circumstances are that a hole or cliff or pumping unit are plainly visible, the occupier may reasonably expect invitees to go safely about their business without requiring the construction of “Danger” signboards or guard rails. If the danger is not plainly visible, the occupier may discharge the requirement of due care by giving an adequate warning. In the present case we may assume that if Morgan had left the premises after starting the pump motor, the circumstances would have warranted no recovery by Abalos.
The circumstances changed, however. Morgan watched Abalos work his way into the devastating clutch of the pump. A jury could find that Morgan should have known that Abalos was totally unaware of his proximity to the pump and that Morgan should have known that Abalos would be mangled if Morgan did nothing. The jury would be entitled to find a failure to warn, under all of the circumstances, to be negligence.
I do not regard Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942), as relevant. Morgan was no bystander; at all times he owed the legal duty to Abalos of occupier to invitee.
While the occupier may discharge the care required of him under one set of circumstances, a change in circumstances may require more of him. His legal duty may require more than a one-time response. Suppose the occupier carefully undertakes to give an adequate warning to a contractor on his premises by showing the foreman where all high pressure gas lines are located; the occupier fulfills the requirements of Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.1967), and of Pence Construction Corp. v. Watson, 470 S.W.2d 637 (Tex.1971). He may then retire with impunity. But suppose he does not retire. He remains on the premises and overhears workmen talking; he learns from that talk that they do not know of a gas line or have misunderstood its location. May the occupier stand by and let the workmen dig into the gas line? Of course he cannot — not without liability.
I do not regard the “control” question as an important one. The Ruthco operation or the manner in which that work was done does not rule the issue of Morgan’s negligence. The pumping unit was a premises condition; if it was a danger, the occupier owed the invitee a duty to exercise due care toward its avoidance.
I agree that the issues for the jury should be negligence and contributory negligence. So much for “last clear chance” and “discovered peril” and “no-duty/assumption of risk.” In the proof and contention for and against determinations of negligence, most of the same arguments (and terminology too) may be used. But these are not issues to be submitted separately to the jury, and they are not defenses to overcome adverse findings as were “assumption of risk” or “discovered peril.” We go with negligence and contributory negligence (now comparative) to resolve the fault question.
I would remand this case to the trial court for that method of trial.
SAM D. JOHNSON, J., joins in this dissent.