Coffee v. F. W. Woolworth Co.

• Decision Date: 31 March 1976
• Docket Number: No. B--5603,B--5603
• Citation: 536 S.W.2d 539
• Parties: C. E. COFFEE et al., Petitioners, v. F. W. WOOLWORTH COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 539

536 S.W.2d 539

C. E. COFFEE et al., Petitioners, v. F. W. WOOLWORTH COMPANY et al., Respondents.

No. B--5603.

Supreme Court of Texas.

March 31, 1976.

Rehearing Denied May 5, 1976.

Francis I. Gandy, Corpus Christi, for petitioners.

Dyer, Redford, Burnett, Wray & Woolsey, B. Mills Latham, Corpus Christi, for respondents.

POPE, Justice.

Mrs. Floy Coffee obtained favorable answers to special issues in her action for personal injuries which she sustained in a fall inside the store owned by defendants F. W. Woolworth Company and Woolco Department Stores. The defendants will be referred to as Woolco. The trial court granted defendants' motion for judgment non obstante veredicto and the court of civil appeals affirmed the judgment. 526 S.W.2d 793. The points of error in the court of civil appeals and in this court are that the plaintiff produced more than a scintilla of evidence which supports each of the essential jury findings. In our opinion there was some evidence which supports each of the findings. We reverse the judgments of the courts below and render judgment on the jury verdict that plaintiff Coffee recover the sum of $7,500.00.

On December 15, 1970, at approximately 10:30 a.m. the plaintiff entered the defendant's store for the purpose of shopping. As in many stores of this type the merchandise was arranged in long parallel rows down which the customers could walk and shop. The merchandise was not placed directly on the floor, instead it was placed on low rectangular platforms, or 'gondolas' as the parties have referred to them. The platforms were about five feet square and were raised off the floor to a height of about six inches by narrow legs at each corner. The platforms were placed side-by-side in long rows and the merchandise was then stacked on top of them to about eye level. There were aisles between the parallel rows of merchandise and those aisles were intermittently broken by aisles which ran at right angles. While walking down an aisle between two rows of merchandise, Mrs. Coffee attempted to turn to the right down one of the right-angle aisles, when she tripped over the last platform which was at the intersection of the row of merchandise and the aisle. It is undisputed by the parties that this last platform was empty.

The jury found that the defendant (1) created a dangerous condition by leaving the platform in the condition and location where it was left; (2) the defendant knew or should have known of the dangerous condition; (3) the defendant was negligent in failing to warn Mrs. Coffee of the dangerous condition or in failing to remove it; and (4) such negligence was the proximate cause of the accident. Upon the defendant's motion the trial court rendered judgment non obstante veredicto.

We hold that there was some evidence which supported the first finding. There is a picture in the record of the empty platform or one like it, which shows that the top of the empty platform was almost the same color as the white tile floor. An empty platform so close to the floor blended into the floor and could easily be confused for an aisle. The jury could well infer that one walking down the aisle would turn at the intersecting aisle without knowing that there was a platform six inches above the floor and believing it was an aisle.

The court of civil appeals focused its attention upon the second finding that the defendants knew or should have known of the condition about the empty platform, holding: 'The record is void of any evidence that appellees (defendants) actually knew that the 'gondola' was empty. There is also a total absence of evidence regarding the time when the 'gondola' was emptied or low long it had been empty before Mrs. Coffee tripped over it.' 526 S.W.2d 793, 795. In our opinion there was some evidence which supports the finding. The personnel supervisor of defendant's store testified that there were only two possible explanations as to why the platform would be empty. Either store personnel were in the process of changing a display of merchandise or the merchandise on that particular platform had sold out and had not been restocked. If the store personnel were changing a display, then it is obvious that the defendants, through their employees, had actual notice of the empty and dangerous condition. This explanation of why the platform was empty is somewhat more probable than the other since the personnel supervisor testified that it was the store's policy, 'to try and display it (the merchandise) so as it will look as full as possible . . . we'd like to have it to where it's shoulder level or, you know eye level.' The store did not ordinarily permit the platform to become empty by virtue of customer buying, because they considered it had salesmanship. Thus the jury could have reasonably inferred that the platform was empty because store personnel were changing displays and that the defendants had actual notice.

There was also evidence to support the finding that the defendants should have known about the empty platform even if it was empty because of customer buying. On this issue the court of civil appeals held that the plaintiff could not establish that the defendant should have known of the empty platform unless she produced some evidence as to how long the platform was empty before she tripped over it. There are numerous cases which hold that where an obstacle or slippery substance is on a floor because of the acts of some person, for whom the proprietor is not responsible, proof is necessary of actual notice or proof that the condition existed for such length of time as would give the proprietor a reasonable opportunity to discover the condition. Soto v. Biel Grocery Company, 462 S.W.2d 89 (Tex.Civ.App.--Corpus Christi 1971, no writ); Todd v. Hill's, Inc., 383 S.W.2d 250 (Tex.Civ.App.--Fort Worth 1964, writ ref'd n.r.e.); Furr's, Inc. v. McCaslin, 335 S.W.2d 284 (Tex.Civ.App.--El Paso 1960, no writ); Annot., Obstacle on Floor--Injury, 61 A.L.R.2d 110 § 7 (1958). These cases usually arise when a customer drops some food item on the proprietor's floor. Fontenot v. Sears Roebuck Co., 399 S.W.2d 394 (Tex.Civ.App.--Beaumont 1966, writ ref'd n.r.e.) (banana peel); Todd v. Hill's, Inc., supra (lettuce); O'Neal v. Weingarten, Inc., 328 S.W.2d 793 (Tex.Civ.App.--Beaumont ...