A. C. Burton Co. v. Stasny, 12116.

• Decision Date: 28 July 1949
• Docket Number: No. 12116.,12116.
• Citation: 223 S.W.2d 310
• Parties: A. C. BURTON CO., Inc. v. STASNY et al.
• Court: Texas Court of Appeals

223 S.W.2d 310

A. C. BURTON CO., Inc. v. STASNY et al.

No. 12116.

Court of Civil Appeals of Texas. Galveston.

July 28, 1949.

Rehearing Denied October 6, 1949.

Fulbright, Crooker, Freeman & Bates, John V. Singleton, Jr., and W. N. Arnold, Jr., Houston, for appellant.

George Red, Pat N. Fahey, and T. J. Caldwell, Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellee, Charles A. Stasny, as father and next friend of Charles Stasny, for the recovery of damages for personal injuries alleged to have been sustained by Charles Stasny as a result of having walked through a plate glass window in the premises occupied by appellant, A. C. Burton Company, Inc.

The damages sought were alleged to have been caused by appellant's negligence in maintaining a window in its showroom in Houston, Texas, that had all the appearance and looked like an open door, without markings to guard the approach of customers. Appellee alleged that the window was maintained in such a way as to lead persons approaching the window to think that it was a door; that it was completely transparent and highly polished, and not readily visible to a person approaching it from the inside of the building.

Appellant answered by a general denial and a plea of contributory negligence and assumed risk.

In answer to special issues submitted a jury found that appellant was guilty of negligence in not maintaining a guard rail across said window and in failing to place markings thereon, and that such negligence on the part of appellant were proximate causes of appellee's injuries. The jury found that Charles Stasny was walking with his head down at the time he was injured, but that such action was not negligence, and that he did not fail to keep a lookout in the direction in which he was walking immediately before he was injured, and that he did not know there was a plate glass window at the place he walked into. They assessed his damages in the sum of $3000.00 and the judgment was in appellee's favor in that amount.

Under its first two points of error appellant contends that the trial court erred in overruling its motion for an instructed verdict, which was timely made at the conclusion of appellee's case, for the reason that the plate glass window through which appellee walked was open and obvious and that it was known or by the exercise of ordinary care should have been known by appellee to be a plate glass window. Under its third point of error appellant contends that the answer of the jury to special issue No. 10 that Charles Stasny did not know before the accident occurred that there was a plate glass window at the place where he walked into it as he was leaving appellant's showroom floor was contrary to the overwhelming weight and preponderance of the evidence.

The record reflects that, at the time of the accident in question, Charles Stasny was 16 years of age; that on the afternoon of September 10, 1947, he went to appellant's place of business to purchase parts for his automobile, and that, after making his purchase, he walked toward the front of appellant's showroom by the same route he had followed in entering the building, but that instead of walking through the doors provided for such purpose, he walked through a plate glass window located at the right of the doorway, causing the alleged injuries.

The entrance to appellant's place of business consisted of double doors constructed of iron grill-work. Appellee testified that when he entered appellant's place of business he saw and observed the plate glass window through which he subsequently walked and knew it to be a plate glass window; that he proceeded through the grill-work doors, pushing them inward, and proceeded across the showroom floor, some forty feet in width, to the parts department, which was located in the rear of the building; that after making his purchase in the parts department he again entered the showroom; that as he entered the showroom he looked up and saw that the grill-work doors through which he had entered were closed; that he then dropped his head, looking toward the floor, and never looked up again until he walked through the plate glass window.

It has been uniformly held by the courts of this State that the right of recovery for injuries resulting from negligence is based upon the violation of a duty. In the case of Furst-Edwards & Co. v. St. Louis Southwestern R. Co., Tex.Civ.App., 146 S.W. 1024, 1028, w/e ref., it was held that "The right of recovery for injuries resulting from negligence is based upon the violation of duty", and that "The inquiry in each case of alleged damages is, What was the legal duty of the defendant under the circumstances of the case?"

The question then presented in this appeal is what were the legal duties of appellant under the facts in this case.

In the case of Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, 374, w/e ref., the court, under a similar state of facts, announced the rule of law defining the duties of the owners and operators of premises with reference to alleged dangerous conditions thereof to invitees using the building for legitimate business purposes. The court, in its opinion, quoting with approval from 45 C.J. 837, said: "`The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor...