Crowell-Gifford Furniture Co. v. Cloutman

• Decision Date: 24 February 1955
• Docket Number: No. 4988,CROWELL-GIFFORD,4988
• Parties: FURNITURE COMPANY, Appellant, v. Millard A. CLOUTMAN, Appellee.
• Court: Texas Court of Appeals

Page 539

276 S.W.2d 539

CROWELL-GIFFORD FURNITURE COMPANY, Appellant, v. Millard A. CLOUTMAN, Appellee.

No. 4988.

Court of Civil Appeals of Texas, Beaumont.

Feb. 24, 1955.

Rehearing Denied March 16, 1955.

Barnes & Barnes, Beaumont, for appellant.

D. F. Sanders, Alto V. Watson, Beaumont, for appellee.

PER CURIAM.

This is an appeal by Crowell-Gifford Furniture Company, a Texas corporation, the appellant, from an adverse judgment in favor of Millard A. Cloutman, the appellee, in a slipping and falling case. The judgment was in the district court of Jefferson County, and awarded damages in the sum of $14,250.

By its first point of error, appellant complains of the trial court's action in overruling its motion for continuance. The court overruled appellant's motion for continuance, based on the absence of Dr. Walter W. Glass, Jr. Dr. Glass is a physician who resides in Port Arthur, in Jefferson County, and at the time the case was called for trial, he was temporarily out of the city in New York. No subpoena had been applied for to secure his attendance at court. The motion for continuance did not show that Dr. Glass had been notified of the setting of the case for trial, or that he had agreed voluntarily to appear and testify, or that any effort had been made to take his deposition. Under the Supreme Court's holding in Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856, this motion did not show diligence on the part of appellant to secure the attendance of Dr. Glass, and it was not error for the trial court to overrule it. See, also, Texas Employers' Ins. Ass'n v. Locke, Tex.Civ.App., 224 S.W.2d 755. The written report of Dr. Glass was received in evidence, on agreement of counsel for appellee that if he were present at the trial he would testify to the statements contained in such written report. This point presents no error and it is overruled.

By his first amended original petition, the pleadings upon which appellee went to trial, he alleged, in substance, that he was the husband of Rosemary Cloutman and as such brings the action as manager of the community estate between them for personal injuries to his wife suffered while he and she were in the furniture store of the appellant at Port Arthur, Texas, for the purpose of buying some household furniture; that the appellant's furniture store has several different floors of furniture and merchandise and that the second floor is accessible by a stairway leading from the first to the second floor; that the stairway is about three or four feet wide and is composed of about 15 steps, and such steps are covered with linoleum or similar type floor cloth; that the front half portion of the surface of each step is convered with a corrugated or treated rubber mat or covering and that the front portion of the step that is covered with a rubber mat is higher than the remaining portion of the step convered with linoleum thereby rendering the surface of each step uneven; on the morning of September 13, 1952, appellee and his wife, while in said furniture store, went upon the second floor and there found the type of furniture they desired and decided to purchase the same and then proceeded to go down to the first floor to consummate the sale; they went down the stairway and when Mrs. Cloutman reached approximately the middle of the stairway the heel of her shoe got caught and hung on the step at the point where the elevation of the surface of said step deviates and changes and more particularly at the point on the surface of said step where the two separate portions of the surface of the step connect at the rear or back edge of the rubber mat on the front half of each step; he further alleged that there was no handrail on the right side of the stairway and that as a 'proximate cause' of the difference in the elevation of the surface of the step the heel of her shoe got caught on the back edge of the side of the mat that was upon the front part of the step or the space that was between different levels of the surface of the step and thereby caused his wife to violently trip and fall down the stairway and to sustain serious, painful and permanent personal injuries.

He further alleged that the appellant owed appellee and his wife the duty to maintain the premises in a reasonably safe condition, but that it failed and neglected to keep the premises in a reasonably safe condition and was guilty of the following acts and omissions constituting negligence, each and all of which were a proximate cause of her injuries and damage: (1) maintaining a mat or covering on the front portion of the steps that was not level with the remaining portion of the step; (2) maintaining a mat upon the front portion of the step that was of a greater height than the balance of the step; (3) maintaining the surface of the step at two different levels or elevations; (4) failing to have the mat on the front portion of the step even and flush with the remaining portion of the step; (5) failing to have metal or other strips fastened along the steps where the mat on the front portion of the step ends and the remaining portion of the step begins; (6) considering the direction of people descending such stairway the appellant was negligent in failing to provide a handrail on the righthand side of the stairway for the use of people descending such stairway.

He further alleged that as a direct and 'proximate cause' (he undoubtedly means result) of the negligence of the appellant, his wife tripped and fell violently down the stairway receiving the following injuries: a transverse fracture to the lower portion of the sacrum, with involvement of the surrounding muscles, ligaments, tendons, nerves, blood vessels and soft parts, and with resulting pain, deformity and disability; precipitation and aggravation of a congenital spondylolisthesis, which prior to the accident was not disabling and symptom free, and which condition now has flared up and become painful and disabling as a result of the trauma to said area; the muscles, tissues, blood vessels, cells, tendons, ligaments, nerves, bones and vertebrae in her lumbar and sacro-coccygeal region were strained, torn and broken, and she received a displacement forward of the fifth lumbar vertebra; she has coccygodyina, which is extremely painful and disabling and received contusions of the sacro-coccygeal region; her shoulder was stretched, strained and torn; as a result of such injuries she has suffered excruciating and agonizing physical pain and mental anguish, humiliation and discomfort and in all reasonable probability she will continue to suffer such physical pain and mental anguish for the balance of her life. Said injuries have disabled his wife and he has been deprived of the services, earnings, society, companionship and assistance of his wife and her capacity and ability to render and perform service, earn money, perform various other domestic activities have been permanently impaired and dimminished as a result of said injuries. His wife is a woman 31 years of age with a life expectancy of 41 years; because of the past and prospective physical and mental pain and anguish that she has suffered and is going to suffer in the future, and because of the loss of services and earnings of his wife because of her injuries and because of services, earnings and aid that he will lose in the future, together with the fact that his wife's ability to perform said services and earn money will be permanently impaired and diminished, he was damaged in the sum of $25,000.

He further alleged that for his wife's disability he has incurred medical bills for professional services, X-ray examination, drugs and medicines of $125, which was reasonable and the customary charge, and further alleged that he will incur further expenses in the treatment of his wife's injuries to the extent of $625.

The appellant answered by various special exceptions, general denial and by special denials. It specially denied that the condition of the steps alleged in appellee's petition alleged any defects but merely alleged normal conditions which were open and obvious and plainly visible to appellee and his wife, or by the exercise of ordinary care could have been known by them; that there was no condition of facts to hide the steps and their covering, that the actual condition was easily discovered, plain and evident to appellee and his wife; that the steps and stairway were well lighted by outside windows and carefully placed lights and that appellee's wife saw or should have seen every step and tread if she had used or exercised reasonable care as she walked down the steps. It further alleged that appellee and his wife were guilty of acts and omissions which were the proximate causes of the fall and injuries, in that they each and both failed to keep a proper lookout, and in that the stairway was open and obvious and lighted and the condition thereof easily discernible and could have been seen by each of them and that they therefore assumed the risk, if any, in walking down the stairway, and in that said parties walked down the stairway talking to others, watching children ahead, looking away from the steps and that appellee's wife wore a very long and high heel, causing her ankle to turn and her foot to catch on the front edge of the tread, and in that appellee's wife was walking down the steps in a hurry and at a too rapid rate.

It further alleged that the stairway was well constructed, that the back and front portions of each step were even and level, that on the right coming down such stairway was the wall of the store and on the left was a guardrail which was held by appellee's wife by her left hand; that the stairway was well lighted by natural and artificial lighting, that at about two-thirds of the way up the stairway was a large brilliant light hanging from the first ceiling; that there were several large lights at the foot of the stairway and beyond the top...