Fort Worth & D. C. Ry. Co. v. Hambright

• Decision Date: 19 June 1939
• Docket Number: No. 5045.,5045.
• Citation: 130 S.W.2d 436
• Court: Texas Court of Appeals
• Parties: FORT WORTH & D. C. RY. CO. v. HAMBRIGHT.

130 S.W.2d 436

FORT WORTH & D. C. RY. CO. v. HAMBRIGHT.

No. 5045.

Court of Civil Appeals of Texas. Amarillo.

June 19, 1939.

Rehearing Denied July 10, 1939.

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Action by L. E. Hambright against the Fort Worth & Denver City Railway Company for damages for personal injuries claimed to have been received by plaintiff in a fall occurring when he was entering the door of defendant's warehouse. Judgment for plaintiff for $1,587.60 and, its motion for new trial being overruled, defendant appeals.

Reversed and remanded.

Luther Hudson and Thompson & Barwise, all of Fort Worth, and Tatum & Tatum, of Dalhart, for appellant.

Works & Bassett, of Amarillo, and Art Schlofman, of Dalhart, for appellee.

STOKES, Justice.

This suit was filed by appellee April 19, 1938, against appellant for damages for personal injuries received by appellee shortly after midnight December 14, 1937. The facts disclosed by the record are, substantially, that appellee was employed by Dalhart Transfer Company as driver of a taxi cab. His duties also involved the driving of a small pick-up truck used by the Transfer Company in a general transfer business at the town of Dalhart. A day or two prior to the 14th, considerable snow and sleet had fallen in the vicinity and a light mist and some snow had fallen on that day. In addition to, and in connection with, the transfer business, the Dalhart Transfer Company had a contract with appellant under which in cold weather the employees of the Transfer Company placed heating stoves in refrigerator cars containing fruit, vegetables and other susceptible commodities in order to prevent damage or destruction from freezing. About midnight, December 14, 1937, an employee of appellant telephoned from the railway station to appellee at the transfer barn, requesting appellee immediately to come to the station and place stoves in a car containing bananas. Appellee went to the station in his company's pick-up truck for the purpose of procuring the stoves from the warehouse and placing them in the banana car. Upon reaching the station he backed the small truck up to the warehouse door, alighted, and in proceeding to or entering the door of the warehouse he alleges he slipped and fell, the fall resulting in a fractured hip. Appellee alleged that snow and ice had accumulated around the warehouse door and his suit is based upon alleged negligence of the railway company in not removing the snow and ice and in permitting the same to remain in and around the door which, he alleges, caused him to slip and fall.

Appellant answered by the general issue and specially pleaded the weather conditions from which snow and ice had accumulated in the streets, sidewalks and upon adjacent premises, including the railway station; the general knowledge of such conditions, and that if snow and ice had accumulated around the door of the warehouse, appellee knew of it or by the exercise of ordinary care could have known of its presence; that prior to six o'clock in the evening its employees had removed all ice and snow from the door and approach to the warehouse and had fulfilled any duties or obligations it owed to plaintiff or anyone else in connection therewith. It alleged contributory negligence in this regard and that if ice or snow had accumulated at the door and approach to the warehouse, such conditions were known to appellee at the time and before he attempted to enter the warehouse.

The case was submitted to a jury upon special issues, in answer to which the jury found that appellee fell and was injured as alleged by him; that snow and ice had accumulated at the approach to the warehouse and that his fall and injury were occasioned thereby. They further found that appellant's agents knew of the presence of the snow and ice a sufficient length of time to have removed the same in the exercise of ordinary care; that they failed to do so and that such failure was negligence which proximately caused the injury. The jury further found that appellant had permitted snow and ice to remain at the approach which they also found was negligence proximately causing the injury. They exonerated appellee of any contributory negligence in approaching the warehouse; found the injury was not the result of an unavoidable accident, and that appellee had been damaged in the sum of $1587.60.

Judgment was entered by the court in favor of appellee for the amount of damages found by the jury and its motion for a new trial being overruled, appellant duly excepted, gave notice of appeal, and the case is now before us for review.

Appellant presents the case in this court upon nine propositions of law supported by appropriate assignments of error, but in the view we take of the case it will not be necessary to discuss all of them. The pertinent contentions presented by appellant and upon which it contends the judgment should be reversed are, first, that appellee being an invitee upon the premises of appellant and knowing the condition of the premises, there was no issue of fact for the jury and the court erred in refusing to instruct the jury to return a verdict in its favor. Secondly, appellee being an invitee, the court erred in refusing to submit to the jury special issues requested by it as to whether or not appellee knew of the presence of ice and snow at the approach to the warehouse door. Thirdly, error in the definition given of "new and independent cause" and, fourthly, error in submitting the same issues of fact in two separate series of questions.

We cannot accede to the first contention made by appellant. There is no question, we think, that, when appellee received the injury, his relationship to appellant was that of an invitee upon appellant's premises. Appellee was not employed by appellant but was working for the Dalhart Transfer Company with whom appellant had a contract under which the Transfer Company, when requested, was obligated to install heating stoves in refrigerator cars being transported on appellant's railway. On the occasion in question appellee had been requested by appellant's employee at the station to come to the station for the purpose of discharging the duties of his employer. He was, therefore, an invitee, and the rights and duties of both parties are governed by the law pertaining to such relationship.

It is well established in this and many other jurisdictions that the mere ownership of lands or buildings does not render the owner liable for injuries that may be sustained by those who enter thereon. He is not an insurer of such persons even though he invites them to enter his premises. Furthermore, the doctrine of res ipsa loquitur does not apply to such an owner when it is shown only that an injury has been sustained by those who are rightfully upon his premises. The only condition under which such an owner is liable to those whom he invites upon his premises are when dangerous and unsafe instrumentalities or conditions exist and are known to him and not known to such invited persons and they are injured by such instrumentalities or conditions. It follows that if a person is injured under such circumstances and the instrumentality or condition by which he was injured is as obvious or well known to him as it is to the owner of the premises, no liability exists for such injury and the law will allow him no recovery therefor. Shawver v. American Ry. Express Co., Tex.Civ. App., 236 S.W. 800; Crump v. Hellams, Tex.Civ.App., 41 S.W.2d 288.

We know of no better statement of the law in respect to this principle than was made by Justice Graves in the case of Galveston, H. & H. Ry. Co. v. McLain, Tex. Civ.App., 218 S.W. 65, 67. In that case the plaintiff was employed by a warehouse company. In discharging their duties it became necessary on frequent occasions for the employees of the warehouse company to move cars upon a dilapidated side track belonging to the railway company and located alongside the warehouse. In doing this some of the employees pushed the cars from the side and others pushed from the...