Crump v. Hellams
| Decision Date | 20 June 1931 |
| Docket Number | No. 12490.,12490. |
| Citation | 41 S.W.2d 288 |
| Parties | CRUMP et al. v. HELLAMS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; W. W. Cook, Judge.
Action by Mrs. Addie O. Hellams and another against C. G. Crump and another, copartners composing the firm of Crump Brothers, and another. Joint and several judgment in favor of plaintiffs against all defendants, and named defendants appeal.
Judgment, so far only as it was against named defendants, reversed and rendered.
T. R. Boone and E. T. Duff, both of Wichita Falls, for appellants.
P. B. Cox, of Wichita Falls, for appellee.
E. M. Crump and C. G. Crump, composing the partnership firm of Crump Brothers, were engaged in the retail grocery business in the city of Wichita Falls. The manner of conducting the business was indicated by the trade-name employed by the defendants of "E-Z Self Serving Grocery Store." The store was so arranged that customers might pass up and down the building in making their selections of goods and merchandise which they desired to purchase. In the rear end there was a large refrigerator equipped with eight doors which opened into shelves where milk, cream, butter, vegetables and other products were kept. Those compartments and the doors opening into them were arranged one above the other. The compartments in which the articles were kept extended from the front to a depth of 20 to 24 inches, and the lower compartment was from 2 to 4 inches from the floor. The next compartment above that one was from 18 to 20 inches above the floor, and the next one a corresponding distance above that.
Mrs. Addie Hellams was a customer of the defendant's store, and on or about May 11, 1929, she entered therein with the implied consent and permission of the owners; she went to the refrigerator for the purpose of making a purchase of milk products. She opened the door of the lower compartment, and while stooping over, as she was compelled to do in order to inspect and take therefrom certain articles therein, one John M. Fox, another customer, opened an upper door of the refrigerator and swung it back above Mrs. Hellams' body without giving her any warning of his act in so doing. After Mrs. Hellams had procured the milk products from the lower compartment, and without warning that the door above her had been left or held open, she straightened up and her back came in contact with that door and by reason thereof she sustained serious and painful injuries.
Mrs. Hellams and her husband, T. M. Hellams, instituted this suit against the members of the partnership firm operating the store and also John M. Fox to recover damages for the injuries she sustained. A joint and several judgment was rendered in favor of plaintiffs against the defendants John M. Fox and the members of the partnership firm for the sum of $500. The judgment against Fox was by default and he has prosecuted no appeal; but the Crump Brothers have prosecuted this appeal from the judgment against them.
The cause of action alleged against Fox was for negligence in opening and leaving open the refrigerator door which caused Mrs. Hellams' injuries. The allegations of negligence on the part of the Crump Brothers, which were sustained by the findings of the jury, were (1) in failing to give any warning to customers using the refrigerator not to open the top doors of the same while another customer was using the lower compartment; (2) in failing to give notice to Mrs. Hellams and John Fox of the danger, if any, of two customers using the refrigerator at the same time; (3) in failing to have some one present to warn Mrs. Hellams and Fox of the danger of opening one of the top doors of the refrigerator while she was using the lower compartment. The jury further found that each of the acts of negligence so found by them was the proximate cause of Mrs. Hellams' injury; and there were further findings exonerating Mrs. Hellams of the charge of contributory negligence in several particulars pleaded by the Crump Brothers.
The evidence showed that the refrigerator was of the same pattern as those used in all stores of like kind operated by other dealers, and of the same pattern of those ordinarily used in homes; that each of the doors of the refrigerator was swung with springs attached so that when turned loose by a customer after being opened would instantly close by the force of the springs; that the accident happened about 11 or 12 o'clock in the day; that there were signs posted in the store in conspicuous places that the store was a self-serving store; that Mrs. Hellams was a mature woman, who had often used this same refrigerator and knew the self-serving plan upon which the store was operated; that while she was attempting to take from the lower compartment of the refrigerator some milk...
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