Dunning v. Popular Dry Goods Co.

• Decision Date: 05 December 1940
• Docket Number: No. 3974.,3974.
• Citation: 146 S.W.2d 835
• Parties: DUNNING v. POPULAR DRY GOODS CO.
• Court: Texas Court of Appeals

146 S.W.2d 835

DUNNING v. POPULAR DRY GOODS CO.

No. 3974.

Court of Civil Appeals of Texas. El Paso.

December 5, 1940.

Rehearing Denied January 9, 1941.

Appeal from County Court at Law, El Paso County; M. V. Ward, Judge.

Action by Mildred May Dunning against Popular Dry Goods Company for injuries suffered in fall. From a judgment on a verdict for defendant, plaintiff appeals.

Affirmed.

John T. Hill, of El Paso, for appellant.

Kemp, Nagle & Smith, J. M. Goggin, and Wyndham K. White, all of El Paso, for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment of the El Paso County Court at Law. Plaintiff, Mildred May Dunning, sought recovery of damages against defendant, Popular Dry Goods Company, a corporation, for personal injuries. Trial was to a jury, submission on special issues, and on the verdict the court rendered judgment in favor of defendant. Plaintiff duly perfected this appeal from the judgment rendered.

The parties for convenience will be designated as they were in the trial court.

Plaintiff's cause of action, as stated in the petition, was, in substance, that on or about the 17th day of April, 1939, she entered defendant's department store from the Texas Street entrance, intending to proceed to the main floor of the store; in order for her to so proceed it was necessary that she pass over an incline leading from the main store to the part of the store called the Annex; that as she attempted to pass over this incline both feet slipped from under her and she fell violently, and thereby sustained personal injuries. Various charges of negligence are made as to the maintaining of the store with the slope, and as to the floor being slick and thus rendered dangerous.

Defendant answered by general denial and a somewhat detailed plea of contributory negligence.

The court submitted the case of plaintiff in five special issues; the answer to each, other than the first, was conditioned on the affirmative answer to the issue immediately preceding. The jury found the first issue in the negative, and hence did not answer the other four. These issues were as follows:

"Question No. 1: Do you find from a preponderance of the evidence, that the plaintiff, Mildred May Dunning, slipped and fell as she was passing over an incline in what is known as the annex in the Popular Dry Goods Company? Answer `yes' or `no.'

"If you have answered the preceding question `yes,' then, but not otherwise, answer the following question:

"Question No. 2: Do you find from a preponderance of the evidence that the incline upon which the plaintiff, Mildred May Dunning, slipped and fell, if you have found that she so did, was a dangerous condition? Answer `yes' or `no.'

"If you have answered the preceding question `yes,' then, but not otherwise, answer the following question:

"Question No. 3: Do you find from a preponderance of the evidence that the plaintiff, Mildred May Dunning, did not know of the danger of the incline, if you have found that it was a danger and did not realize the risk to her own safety in going upon and over the said incline? Answer `yes' or `no.'

"Question No. 5: Do you find from a preponderance of the evidence that the plaintiff, Mildred May Dunning's, slipping and falling upon the incline, if you have found that she did so slip and fall, was the proximate cause of the injuries received by her, if any. Answer `yes' or `no.'"

Plaintiff did not request submission of other issues, and did not object to the manner of the submission by the court.

Under the submission, for plaintiff to recover, it was necessary to secure an affirmative answer to special issue No. 1. In the absence of such finding, the finding of the jury on any of the other issues submitted was immaterial.

The negative answer to issue No. 1 is assailed as being without support in the evidence. That plaintiff fell at some place in the store on the occasion in question is supported by her testimony, and in a measure corroborated by the testimony of two of the defendant's employees. The place of the fall and the time thereof were specified in the issue as "when she was passing over the incline." Her right of recovery was conditioned on the establishment of this place and time. In some of the issues submitted on behalf of the defendant it was assumed as a fact that plaintiff fell in the store on the occasion in question here. Plaintiff testified that she fell when she was passing over the incline. Mrs. Mary Browning, an employee of the defendant, testified that she saw plaintiff on the floor and it was some distance from the incline. In our opinion there was an issue raised by the evidence as to where plaintiff fell with reference to the incline. The...