(dissenting).
I respectfully dissent. It is my opinion that the evidence raised fact issues bearing upon the ultimate question as to the existence and violation of duty owed by the defendant to the plaintiff under the particular circumstances existing on the occasion of the injury. Thus, the non-existence of duty or lack of violation thereof have not been established as a matter of law, and the judgment granting the instructed verdict should be reversed and the cause remanded.
The plaintiff alleged negligence of defendant’s agent, Curtis Morgan, who, upon discovery of plaintiff’s position of peril, failed to take timely action to prevent his injury and that under the doctrine of discovered peril he was entitled to recover against the defendant oil company. The defendant answered by alleging that plaintiff assumed the risk of his work, knew and appreciated the danger and failed to keep a proper lookout for his own safety. Thus, the contention of the plaintiff with respect to the defendant’s duty under application of the discovered peril doctrine is confronted by the affirmative defense of volenti non fit injuria raised by the defendant. The defendant takes the position that its status was that of a bystander and as a matter of law was under no duty to take affirmative *609action. The plaintiff insists that in seeking to define the source and extent of defendant’s duty, if any, fact issues are encountered relating to the ultimate issue as to whether the defendant had a duty to attempt to warn or rescue the plaintiff from his impending danger, and that as a matter of law, plaintiff is not barred from recovery by volenti.
On the occasion in question, the pumping unit had been set in the larger base, and when that work was substantially finished, the defendant’s pumper, Curtis Morgan, arrived at the wellsite. Morgan was the defendant’s agent who had the responsibility of seeing that the pumps on that particular lease operated and were in good operating order. The work remaining to be done at the time of Morgan’s arrival was to complete the hookup, see that the pump was level and finish the backfill of dirt around the pump base. The field superintendent of Ruthco’s crew was Jesse Phillips. Morgan hooked up the gas line on his own initiative, and at Phillips’ request he started the pumping unit. It was customary for the lease operator to start the engine and pump because he was more familiar with the equipment. The pump ran for several minutes to see if it was “setting level” before they began their backfilling around the base. When it appeared that the pump base was level, Phillips directed the Rutheo crew to complete the backfilling of dirt around the pump base. During the back-filling work Abalos got his arms caught in the pumping unit between the Pitman arm and the crank. According to Phillips, it was obvious that at the time Abalos was caught the pumping unit had not made one complete revolution by the time it was stopped, but it had completed a half turn. Just before Abalos was injured, the defendant’s pumper, Morgan, told Phillips, the foreman of Ruthco’s crew, that “I will throw it out of gear if you will throw it back in gear. I have got to go.” According to Morgan, Phillips said, “No, he wanted it to run where they could level the dirt.” Morgan then started to clean Ms hands. He looked up and observed that Abalos was dangerously close to the moving pump. He real-ised that Abalos was in danger of getting hurt, and he stated that he did not think that Abalos was aware that he was sticking Ms arm into the moving machinery. Morgan considered saying something to Abalos, but he never did speak to Mm. When asked why he didn’t yell at Abalos if he thought he was in a dangerous position, he stated, “Well, I-just didn’t.” In the next revolution of the pump Abalos’ hand was caught. Morgan then immediately ran from the wellhead to the pump controls and stopped the pump before it completed another revolution. The evidence shows that the distance from the point near the wellhead where Morgan was standing was about 25 feet from the controls, that the pump was making 8 to 10 revolutions per minute (which would be 6 or 7 seconds per revolution), and when Abalos’ arm was caught, Morgan was able to run the 25 feet and shut off the pump in less then 6 seconds.
Abalos, who at the time of his injury was engaged in backfilling dirt around the base of the pump, stated that he told Phillips and Morgan that they should not start the engine because he might get hurt, but they didn’t listen to Mm. He further stated that it was a dangerous situation because the engine was running.
Morgan and Phillips each testified that Abalos did not say anything concerning whether the motor should be started. Morgan said he “didn’t say a word to me.” Phillips’ testimony concerning this matter was to the effect that Abalos said nothing about whether the motor should be started, that he raised no objection about working around the pump while it was in operation, and that Ms crew, including Abalos, had done this type of work around a pump while it was in operation many times before.
In the case of Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972) the Texas Supreme Court pointed out that in the conventional occupier — invitee case, it is the *610plaintiff’s burden to prove the existence and violation of a legal duty owed by the defendant which includes Ms burden to prove that he did not possess actual knowledge of the danger, and that he did not fully appreciate the nature and extent of the danger. The court also noted that the defendant’s affirmative volenti defense created a burden on the defendant to prove the plaintiff’s knowledge and appreciation of the danger to which he was exposed. However, under the circumstances of this case, the additional basic question has arisen as to whether, under the evidence, the doctrine of discovered peril is applicable.
The essential elemente of discovered peril as set out in Turner v. Texas Co., 138 Tex. 380, 159 g.W.2d 112 (1942) quoting from Baker v. Shatter, Tex.Comm.App., 231 S.W. 349, 350, are: “(1) The exposed condition brought about by the negligence of the plaintiff; (2) the actual discovery by defendants’ agents of his perilous situation in time to have averted — by the use of all means at his command, commensurate with his own safety — injury to him; and (3) the failure thereafter to use such means.” In order to have these elements of discovered peril submitted to the jury, the plaintiff is required to sufficiently prove all of such facts and circumstances as taken together with all reasonable inferences therefrom to constitute some evidence of probative force of their existence. Ford v. Panhandle is Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.M 561 (1952). However, fact issues concerning primary and contributory negligence are immaterial in passing upon the question as to whether a duty has arisen to prevent injury to the plaintiff under the doctrine of discovered peril. See Parks v. Airline Motor Coaches, Inc., 145 Tex. 44, 193 S.W.2d 967 (1946). In Ford v. Panhandle & Santa Fe Ry. Co., supra, the court significantly stated:
“If one discovers another in a position where injury in all reasonable probability will be inflicted unless the discoverer uses ordinary care to prevent the injury, the duty to use such care arises, and that wholly without reference to the character of the discoverer’s conduct before the discovery.” (emphasis added)
In determining the vital questions presented, there are significant aspects of this case which should be kept in proper perspective. First, it is basic that we are here considering the propriety of an instructed verdict and to recognize that the “no evidence” rule applies, and any inference which properly may be drawn from the evidence must be indulged against the granting of the motion. McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). We are not concerned whether the evidence was sufficient to sustain a jury verdict had the case been submitted to a jury, but whether there were any fact issues raised which bear upon or are related to the ultimate question of duty on the part of the defendant under the evidence and circumstances of this case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “ No Evidence’ or ‘Insufficient Evidence’ Points of Error,” 38 Tex.L.Rev. 361. If so, until such issues are resolved it cannot be said as a matter of law that there was no duty and thus the instructed verdict was inappropriate.
Another significant aspect of this case is that this is the second appeal of the ease, and it is contended by appellant that all material aspects were settled in his favor in the first appeal in the summary judgment proceeding, Abalos v. Oil Development Company of Texas, 491 S.W.2d 482 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.). Thus, appellant invokes the doctrine of the “law of the case.” In the case of Clem v. Fulghum, 37 S.W.2d 201 (Tex.Civ.App.—Dallas 1931, affirmed at 58 S.W.2d 15) it was stated:
“We recognize the general rale that a question of law decided on appeal will govern throughout subsequent stages of the case, including decisions that determine the sufficiency of evidence to raise or establish am issue of fact” (cases cited)
*611In 4 Tex.Jur.2d Rev. Part 2, Appeal and Error — Civil Cases, § 1002, we find the following:
“The doctrine of the law of the case is applicable only if it appears, on the second trial of the cause or on the appeal from the judgment rendered at the second trial, either that the facts involved are substantially the same as those involved on the first trial, or else that such facts are so nearly the same as those of the first trial that any difference between them will not result in materially affecting the legal questions involved.”
The former appeal of this case involved a summary judgment proceeding wherein the burden was upon the defendant, as movant, to clearly demonstrate that no genuine issue of material fact existed and that the movant had established as a matter of law that no duty existed on the part of defendant Oil Development Company on the occasion in question. Substantially the same evidence was submitted by deposition as summary judgment proof as that relied upon by both parties in this trial of the case on its merits. This court held in the former appeal that a fact question was raised as to matter of actual control of the operation of the pumping unit at the time of the plaintiff’s injury. In such appeal, this court stated:
“Although the question of duty is one of law, in this case the movant has not established as a matter of law that no duty existed. The fact issue exists as to the essential element of actual control of the operation of the pumping unit, this issue having a direct bearing upon the ultimate issue of duty.”
Also, this court held on the former appeal that a fact issue was raised as to whether or not appellee’s employee, in the light of these particular circumstances, had sufficient time to take action to prevent the injury to Abalos when he discovered him in the dangerous position. By reason of the existence of the fact issues above mentioned, the summary judgment entered by the trial court was reversed and the cause was remanded for trial on its merits. Application for writ of error was brought by the defendant to the Texas Supreme Court, and the application for writ was refused, “No Reversible Error.”
In this trial of the cause on its merits, the trial court granted the defendant’s Motion for Directed Verdict, and in this appeal, among other contentions, the appellant invokes the doctrine of “law of the case.” Appellee insists that the former appeal was from a summary judgment, and that an instructed verdict may be proper in this proceeding although a summary judgment was not proper in the previous proceeding. Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969); Glenn v. Prestegord, 456 S.W.2d 801 (Tex.1970). In the first Prestegord appeal, a medical malpractice suit, summary judgment for the defendant was reversed by the Supreme Court while in the second appeal, instructed verdict in favor of the defendant was affirmed by the Supreme Court. The difference in the two holdings was based upon placement of the burden of proof. In the first proceeding, a summary judgment proceeding, the defendant had the burden of proof, and the court found that there was a fact issue on the question of the defendant’s negligence and that the summary judgment should not have been entered. In the trial of Prestegord on its merits, the plaintiff had the burden of establishing both negligence and proximate came, and in the absence of any proof in either hearing as to proximate cause, the plaintiff had not borne its burden, instructed verdict was proper and thus the judgment of the trial court was affirmed.
It is recognized that in this trial of the instant case on its merits the burden is upon the plaintiff to prove the existence and violation of a legal duty owed to him by the defendant and that he did not have actual knowledge and appreciation of the risk to which he was exposed. After the plaintiff had rested its case and prior to the filing of its Motion for Directed Verdict, the defendant presented its evidence in sup*612port of its affirmative defense of volenti and sought to establish the plaintiff’s knowledge and appreciation of the danger to support its contention of “no duty” .in this occupier-invitee setting. Bees,use of the substantial identity and overlapping of required proof with respect to the issues raised in the trial on its merits and those raised in the summary judgment proceeding, i. e., whether the defendant had a duty being dependent upon proof of plaintiffs actual realization and appreciation of the danger, Adam Dante v. Sharpe, supra, the burden of proof on summary judgment and the motion for instructed verdict was substantially the same. This situation is therefore distinguishable from the difference in the burden of proof requirements in (1) the summary judgment proceeding and (2) the trial on its merits which were involved in the two Prestegord appeals. Because of the overlapping and substantial identity of the fact issues raised from the evidence presented in the two appeals of this case, the essential holdings in the previous appeal of the summary judgment aspect of this case, i. e., that “no duty” was not established as a matter of law since certain fact issues were raised upon which reasonable minds could differ which were related to the ultimate question of duty, would also be applicable with respect to the question of the granting of the Motion for Directed Verdict in the instent case. It has not been established that the fact issues recognized by this court in the summary judgment proceeding have been eliminated by the evidence in this trial on the merits, particularly when the recognized “no evidence” standards are applied.
However, irrespective of the applicability of the holding in the summary judgment proceeding involved in the previous appeal, and by considering this appeal independently, the evidence raises fact issues as to the actual control of the operation of the pump at the time of the occurrence in question; and the determination of the issue of actual control will bear directly on the ultimate and vital issue of the defendant’s duty. Further, if it is established from the various facts and circumstances bearing on duty that a duty on defendant’s part did arise, then the additional fact issue is raised as to whether the appellee’s employee, in the light of these particular circumstances, had sufficient time to take action to prevent the injury to Abalos when he discovered him in the dangerous position. Also, there is some doubt, and it does not appear to have been established as a matter of law, that Abalos sufficiently appreciated the dangerous position at the time he assumed the risk of working while the pump was operating. Since he was experienced in this type of work and had performed similar duties many times, it is indicated that on this occasion he apparently did not actually realize and appreciate the danger of this particular undertaking. Although Abalos stated that he requested that the motor not be started, he did not make any apparent effort to stay out of the way of the pump, thereby indicating that he may not have fully appreciated and realized the actual danger. Morgan and Phillips both testified that they did not know that Abalos requested that the engine not be started, and Morgan expressed doubt as to whether Abalos realized and appreciated his perilous condition. In view of this, the matter of Abalos’ knowledge and appreciation of the danger raises a fact issue. Further, a determination of these fact issues are related to the ultimate issue of duty on defendant’s part and the applicability of the doctrine of discovered peril. Because of these fact issues, “no duty” has not been established as a matter of law, and the instructed verdict would not be justified.
The appellee contends that the applicable rule is the rule adopted by the Restatement, Second, Torts § 314, which provides:
“Duty to Act for Protection of Others “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
*613“The rule stated in this Section is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense in giving him aid or protection.”
*612Comment c under that Section states:
*613Also, it is significant that the term “actor,” as set out in Restatement, Second, Torts § 3, comment a, used to describe the person whose conduct is in question as a basis for liability, includes one whose conduct consists of failure to act as well as one who does act.
In this connection, appellant refers to comment d of the above cited § 314 of Restatement, Second, Torts, which states in part:
“d. The rule stated in this Section applies only where the peril in which the actor knows that the other is placed is not due to any active force which is under the actor’s control. If a force is within the actor’s control, his failure to control if is treated as though he were actively directing it and not as a breach of duty to take affirmative steps to prevent its continuance (see § 802, Comments a and c).”
Under comment d, it is apparent that Section 314 does not apply if it is factually determined that the party who discovers the plaintiff’s peril is the person who is in charge of the instrumentality that is about to injure the plaintiff. At least a fact issue was raised as to the matter of control of this particular instrumentality at the time of the injury.
Appellant contends that the facts in this case fall within the purview of the authority of Restatement, Second, Torts § 821:
Ҥ 321. Duty to Act When Prior Conduct is Found to be Dangerous
“(1) If the actor does an act, and subsequently realised or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
“(2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe it will involve such, a risk.” (emphasis added)
It was Morgan who was the actor and discovered, subsequently to starting the engine, that the moving parts of the pump were about to cause injury to the appellant. Under “(2)” of the above rule, it is immaterial whether Morgan realized at the time he started the pump that such action on his part would later result in injury to Abalos.
It is established that appellee’s agent, Morgan, discovered the appellant’s peril and there was a sufficient lapse of time after such discovery to raise a jury issue on the question as to whether Morgan was negligent, under the circumstances, in failing to take some prompt action to prevent Abalos’ injury. The facts in this case which have been previously discussed show that a jury issue exists as to the aspects of the case which related to the ultimate issue of defendant’s duty to aid the appellant, or whether, under these circumstances, he was a mere bystander and under no duty to act. Appellee contends that Morgan was a bystander and under no duty to act because he did nothing to create the danger, while appellant contends that the duty arose when he realized the danger, although it was previously unanticipated that such danger would arise. In determining Morgan’s legal duty, if any, a jury question has been raised as to which of the parties had actual control of the pumping unit at the precise time in question, and whether, under these particular circumstances, a duty had arisen which required Morgan not to be regarded as a bystander but as one who was legally obligated to seek to rescue the appellant from the impending danger. Restatement, Second, Torts § 314, supra. Additionally, it is well established that the questions of Abalos’ contributory negligence or primary negligence of the Ruthco crew are not determinative in this appeal. Montgomery v. Houston Electric Co., 135 Tex. 538, 144 S.W.2d 251 (Tex.Com.App. Sec. B 1940, opinion adopted by Supreme Court); Parks *614v. Airline Motor Coaches, Inc., supra. The record shows that it was Morgan, an agent of the appellee, who by his connecting the gas line to the engine and starting the engine began a sequence of events that culminated in Abalos’ injury. Significantly, it was Morgan who finally stopped the motor after the accident.
The appellee insists that the doctrine of discovered peril is not applicable to relieve a plaintiff from the bar of volenti. The recent case of Fish v. Ovalle, 512 S.W.2d 718 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.) involved a situation in which both plaintiff and defendant voluntarily engaged in a dangerous activity, wherein the plaintiff allegedly “requested” the defendant driver of an automobile to hit him with the vehicle while he was standing in front of it, and it was contended that such conduct on plaintiff’s part would preclude the application of the doctrine of discovered peril. The court pointed out that even if the plaintiff had voluntarily placed himself in front of the automobile, the humanitarian doctrine of discovered peril would still be applicable. Further, the court stated:
“Since, after plaintiff invited defendant to participate in the game, the defendant discovered him in a position where injury in all reasonable probability would be inflicted on him unless the defendant exercised ordinary care to prevent the injury, the duty to use such care arose, and that wholly without reference to the character of the plaintiff’s conduct before the discovery. Ford v. Panhandle & Santa Fe Ry. Company, supra.”
It appears reasonable that this holding to the effect that the duty arose after the plaintiff discovered the peril, regardless of the defendant’s voluntariness in assuming the apparent risk, and that under such circumstances, the doctrine of discovered peril is applicable, is relevant to a determination of the basic questions in this case.
The record in this case establishes the existence of fact issues bearing on the ultimate question of defendant’s duty toward the plaintiff and the doctrine of discovered peril. Also, it does not appear that it has been established as a matter of law that at the precise time the defendant’s agent became aware of plaintiff’s perilous position, under the circumstances of this case, he had the status of a mere bystander with no duty toward the plaintiff on the occasion in question; therefore, the directed verdict granted cannot be supported.
For the reasons above stated, the judgment of the trial court should be reversed and the cause remanded.