Fergeson v. National Bank of Commerce

• Decision Date: 20 October 1943
• Docket Number: No. 11563.,11563.
• Citation: 174 S.W.2d 1015
• Parties: FERGESON v. NATIONAL BANK OF COMMERCE.
• Court: Texas Court of Appeals

174 S.W.2d 1015

FERGESON v. NATIONAL BANK OF COMMERCE.

No. 11563.

Court of Civil Appeals of Texas. Galveston.

October 20, 1943.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Mrs. Ruth Fergeson against the National Bank of Commerce for personal injuries sustained in a fall on a stairway in defendant's office building. Judgment for defendant, and plaintiff appeals.

Affirmed.

Chas. B. Spiner, of Houston, for appellant.

Chilton Bryan, of Houston (Bryan & Bryan, of Houston, of counsel), for appellee.

GRAVES, Justice.

This appeal is from a judgment below against the appellant and in favor of appellee, wherein, to use its own recitations, "the court, while in the course of preparing the charge to the jury on or about the 10th day of May, A.D.1943, on his own motion, took the case away from the jury and discharged the jury and found the law, evidence, and the facts in favor of the defendant, The National Bank of Commerce, and based thereon, rendered judgment in favor of said defendant, The National Bank of Commerce, relieving it of all liability of every kind or character to plaintiff herein, Mrs. Ruth Fergeson, a feme sole, by the reason of her alleged fall and alleged resulting injuries on or about the 9th day of April, A.D.1942."

On appeal Mrs. Fergeson earnestly contends that her pleadings and proof showed that on the date indicated when she, a woman employee of a tenant in the appellee's Gulf office building in Houston, in pursuit of her daily work was proceeding down a stairway therein, leading from the mezzanine floor to the main lobby, her foot slipped upon a slick metal-edge across one of its steps, causing her to fall and land on her back on a split-landing, where the stairs turned just before reaching the main ground floor, and that she sustained serious injuries.

She freely admits herself to have been only an invitee in the building at the time — she being an employee of Mr. Tint, the owner of the Met-Lo Hat Shop, which was located on such mezzanine floor therein. She was also an adult, who, for eight years, had been going up and down those same steps, watching their wear and tear and effect on people using them; she stated she knew the riser-plates, or metal-edges, were getting shiny, and that the light over the radial section of the stairs was out, and that such section of the stairway was a little darker than usual.

She further testified, in substance, to these outstanding features, to-wit: That on the morning of April 9, 1942, she went into the door in the east-side lobby of the Gulf Building, and started up the mezzanine stairs to Mr. Tint's office; as she started into the stairway she noticed that the light globe in the light over the radial section of the stairway, half way up it, was out, and that the stairway was a little darker than usual; that nevertheless she then proceeded on up such stairs in complete safety, and to the office of her employer, Mr. Tint, on the mezzanine floor; that after she had so arrived at her employer's office on the morning in question, she transacted the business at hand, staying there some twenty to thirty minutes, came out her employer's door, and proceeded on back down the same stairs; when she started back down the stairs from his office, the conditions were the same in the stairway, as well as in connection with the light of the stairway, as when she had gone up the stairs; that at the time she thus came back down the stairway, though she realized the light in question was out and the lighting conditions in the stairwell and over the stairsteps remained the same as when she walked up, she did not use the bannister or handrail on the stairs in going down; in this connection, she conceded also that, had she used the handrail, she could have steadied herself and could have made the stairs and steps and the radial turn thereof with safety, admitting that she had had no trouble in seeing the steps where she was stepping at the time she started down again. During this trial she admitted that she is still using the same steps at this time, and is getting over them safely and satisfactorily, and further that, after her sued-upon fall, and after she had been taken to her employer's office for a rest, she had come back down the same steps — under the same lighting conditions — safely, by holding on to the handrail or bannister thereof.

There is no doubt — indeed, appellant herself so insists — that in her situation the well-settled rule of law is that appellee's only legal duty to her as such an invitee was to use reasonable care to keep its stairs and lights in a reasonably safe condition for her use in traversing the same on the occasion in question, and that in no sense was it an insurer of her safety in so doing. 45 C.J. pp. 837 and 868; 20 R.C.L. pp. 56 and 57.

She then predicates this appeal upon the equally well-settled rule that the court, as was done in this instance, should not direct a verdict for a...