Olds v. Missouri, K. & T. Ry. Co. of Texas

WILLSOÑ, C. j.

(after stating the facts as above). [1] The theory on which the trial court instructed the jury to return a verdict in favor of appellee was that the risk appellant incurred in undertaking to assist in moving the motorcar from the toolhouse to and placing it on the track was one he assumed, because it was an “open, obvious, and patent” one, and “necessarily incident” to service he had undertaken to perform. No doubt the theory was a correct one, unless the testimony would have supported a find-*337lug that appellee, as charged in the petition, was guilty of negligence in failing to…