Brewer v. Otis Elevator Company, 15088

• Decision Date: 21 December 1967
• Docket Number: No. 15088,15088
• Citation: 422 S.W.2d 766
• Parties: Iris Ramsey BREWER et vir, Appellants, v. OTIS ELEVATOR COMPANY, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 766

422 S.W.2d 766

Iris Ramsey BREWER et vir, Appellants, v. OTIS ELEVATOR COMPANY, Appellee.

No. 15088.

Court of Civil Appeals of Texas.

Houston (1st Dist.).

Dec. 21, 1967.

Rehearing Denied Jan. 11, 1968.

David J. Nagle, Houston, for appellants.

David Bland, Barrow, Bland & Rehmet, Houston, of counsel, for appellee.

COLEMAN, Justice.

This is a suit for damages for personal injuries sustained by Iris Ramsey Brewer when she slipped and fell in an elevator. The principal question involved on appeal concerns the duty of care owed by Otis to the public using the elevators by reason of the fact that Otis exercised some degree of joint control over the elevators.

The suit named as defendants Prudential Insurance Company of America, the owner of the elevator and the building in which it was installed; American Building Maintenance Company, Inc., who had a contract with Prudential to keep the building clean; and Otis Elevator Company, who had a maintenance contract with Prudential to keep the elevators in proper repair. The case was tried to a jury. The trial court instructed a verdict in favor of American. After the jury returned its verdict, but before judgment was entered, the plaintiffs informed the court that the cause had been settled as to Prudential, and thereafter filed among the papers in the cause a settlement agreement reflecting a settlement for the sum of $3,000.00 and an assignment from Prudential to plaintiffs of its rights to indemnity or contribution from Otis. The trial court entered judgment that plaintiffs take nothing, denied Prudential indemnity and contribution, and assessed costs against the plaintiffs. No motion for new trial was filed. The plaintiffs have not appealed the judgment insofar as it decrees that they take nothing against Prudential and American.

Since no motion for new trial was filed plaintiffs are confined on this appeal to their points complaining of the refusal of the trial court to grant their motion for judgment. Abbott v. Earl Hayes Chevrolet Company, 384 S.W.2d 782 (Tex.Civ.App., Tyler, 1964).

In their motion for judgment appellants requested the court to enter judgment dismissing American Building Maintenance Company on all actions and cross-actions, and to further enter judgment for plaintiffs and against Otis Elevator Company for one-half of the damages as found by the jury. Plaintiffs further moved the court to find that Prudential Insurance Company is entitled to indemnity from Otis Elevator Company for the sum of $3,000.00, paid by Prudential to plaintiffs in settlement. The motion asked that costs be taxed against Otis and that the judgment be substantially in the form attached to the motion. In the attached form there is a paragraph by which the court ordered, adjudged and decreed that plaintiffs recover nothing against the Prudential Insurance Company of America.

Of the issues submitted to the jury only Special Issues 10, 11, 12, 20, and the definition of proximate cause as submitted in connection with Special Issue No. 3, are material to this appeal. They read:

'SPECIAL ISSUE No. 10--Do you find from a preponderance of the evidence that on the date and on the occasion in question in lighting in Elevator No. 3 was not as bright as that which would have been supplied in the exercise of high degree of care?

To which the Jury answered, 'It was not as bright.'

'SPECIAL ISSUE No. 11--Do you find from a preponderance of the evidence that the failure to furnish light as bright as that which would have been furnished in the exercise of high degree of care, if you have so found, was a proximate cause of the Plaintiff's fall?

'By the term 'proximate cause' as used in the foregoing is meant the same proximate cause as that defined in connection with Special Issue No. 3.

To which the Jury answered, 'We do.'

'SPECIAL ISSUE No. 12--Do you find from a preponderance of the evidence that on the date and on the occasion in question the lighting in Elevator No. 3 was not as bright as that which would have been supplied in the exercise of ordinary care?

To which the Jury answered, 'It was as bright.'

'SPECIAL ISSUE No. 20--Do you find from a preponderance of the evidence that the conduct of Dolly Fulsom was the sole proximate cause of the Plaintiff's fall?

'By the term 'sole proximate cause' as used in this charge is meant the only proximate cause and none other. There can be only one sole proximate cause of an event. By the term sole proximate cause as used in the foregoing Special Issue is meant the same proximate cause as that defined in connection with Special Issue No. 5.

To which the Jury answered, 'We do."

'By the term 'proximate cause' as used in the foregoing issue, is meant a cause which in a natural and continuous sequence, produces an event and without which the event would not have occurred; and to be a proximate cause of an event it should be reasonably anticipated and foreseen by a very cautious and prudent person exercising a high degree of care that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.'

The evidence shows that Miss Dolly Fulsom spilled some chili in one of the elevators. She sent word of the incident to the employee of the building in control of the elevators, which were automatic and had no operators. Before the elevator could be taken out of service for cleaning, Mrs. Brewer attempted to enter it, and slipped on the chili and fell.

It is ap...