Genell, Inc. v. Flynn

• Decision Date: 25 April 1961
• Docket Number: No. 7309,7309
• Citation: 348 S.W.2d 196
• Parties: GENELL, INC., Appellant, v. Rory FLYNN et al., Appellees.
• Court: Texas Court of Appeals

Page 196

348 S.W.2d 196

GENELL, INC., Appellant, v. Rory FLYNN et al., Appellees.

No. 7309.

Court of Civil Appeals of Texas, Texarkana.

April 25, 1961.

Rehearing Denied July 11, 1961.

James A. Williams of Bailey & Williams, Dallas, for appellant.

Woodruff, Hill & Bader, Dallss, for appellees.

FANNING, Justice.

Rory Flynn, a minor, and her father and next friend, Charles H. Flynn, sued Genell, Inc., operator of an apartment building, for personal injuries sustained by the minor girl (who was 7 years of age at the time of her injuries) when the minor was attempting to open a difficult opening door to the building at the foot of a stairway which contained a narrow landing space. The child, who occupied the status of an invitee, had previously opened the door on other occasions by standing on the second step of the stairway and by pushing and leaning her weight upon the door. On the occasion in question she came down the stairs after visiting a friend's apartment, and in attempting to open the door in question, leaned and pushed upon the glass portion of the door instead of the wooden portion of the door, and her hands and arms went through, breaking the glass panel, cutting her arms severly, severing the ulnar nerves, other nerves, also cutting her hands, and thereby received serve and permanent injuries.

The jury in response to the special issues submitted found in effect as follows: That defendant on the occasion in question maintained a glass that was loose in the frame of the door in question (issue 1-A), that same was not negligence (issue 1-B), and the proximate cause issue on this matter (issue 1-C) was not answered; that defendant maintained single strength glass in the door in question on the occasion in question (issue 1), that same negligence (issue 2), but that same was not a proximate cause of the minor's injuries (issue 3); that on the occasion in question defendant maintained an adjustment on the door closer that made the door in question difficult to open (issue 4), that the same was negligence (issue 5), and that such negligence was a proximate cause of the injuries, if any, sustained by Rory Flynn on the occasion in question (issue 6); the damage issues, Nos. 7 and 8, were answered $35,000.00 and $2,500.00 respectively; that Rory Flynn's pushing upon the glass of the door in question was not negligence (issue 9), and the proximate cause issue on this matter (issue 10) was not answered; that on the occasion in question Rory Flynn did not fail to keep a proper lookout for her safety as an ordinarily prudent child of her age, intelligence and capacity would have kept under the same or similar circumstances (issue 11), and the proximate cause issue on this matter (issue 12) was not answered; that Rory Flynn's attempt to open the door in question by leaning forward from the second step of the stair on the occasion was not negligence (issue 13), and the proximate cause issue on this matter (issue 14) was not answered; and that the occurrence in question was not the result of an unavoidable accident (issue 15). These 15 issues were all of the issues submitted by the trial court. No issue was requested or submitted inquiring as to whether the dangers of the door in question (if any) as located and situated under the evidence in this case, were not so open and apparent that the child, Rory Flynn, should have realized them. No issue was requested or submitted as to whether the minor invitee Rory Flynn 'of her own free will and as a result of intelligent choice', voluntarily exposed herself to the dangers of the door in question, if any.

Appellant presents numerous points on appeal. Among other things, appellant contends that it was entitled to judgment as a matter of law, that the trial court erred in overruling its motion for instructed verdict, erred in submitting any issues to the jury, and erred in overruling its motion for judgment n. o. v. In this connection appellant contends in essence that under the undisputed evidence there was no negligence on the part of defendant, that there was 'no duty' on defendant to maintain the door in any other manner than which it was maintained, that the condition of the door was open and obvious, and that any dangers connected therewith were so open and apparent that Rory Flynn should have realized them, that as a matter law the injuries to the minor were not foreseeable, that the minor assumed the risk in question, that the minor was guilty of contributory negligence as a matter of law, and that under the doctrine of volenti non fit injuria defendant was entitled to judgment as a matter of law under the undisputed facts in the case. Appellant also contends that there was 'no evidence', and 'insufficient evidence' to support the jury's answers to special issues Nos. 4, 5, and 6, and that the answers of the jury to special issues Nos. 4, 5, and 6 were 'so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.'

The apartment house where the injury occurred was managed and operated by defendant genell, Inc.; there was ample testimony in the record to show that the door in question was especially difficult to open, which was well known to defendant, its agents and employees. Furthermore, it was undisputed that the glass portion of the door in question was weak, single strength 'windowpane type' glass, and this was also well known by defendant, its agents and employees; furthermore, there was evidence that there was a great amount of breakage of this character of glass in the many apartments managed and controlled by defendant, requiring frequent replacements, all of which was well known by defendant, its agents and employees. The evidence also showed that when such breakage occurred defendant, its agents and employees, replaced such weak single strength glass with double strength glass. Pictures of the door and stairway in question are shown in the record, and a mock- up replica of same has been presented to this court for viewing. The stair landing was narrow; the evidence was ample that the door was very difficult to open, and that it took quite a bit of force and weight to open it both for adults and children. It was of course more difficult for small children to open than adults; children who used the door usually stood on the second step of the stair in order to lean forward and push with their weight and strength against the door in order to open it. It was also well known to defendant, its agents and employees, that many small children lived in the numerous apartments operated by defendant. Rory Flynn had used this door before and had been taught by a girl playmate to stand on the second step of the stairway and push with her weight against this difficult opening door. At the trial Rory Flynn, among other things, testified to the effect that on the occasion in question when she got to the second step of the stairway from the bottom, she leaned over to push the door open, that when she pushed on the door she pushed on the glass, and her hands and arms went through the glass and her arms and hands were badly cut and severely injured, that she had no fear of pushing on the glass and did not think the glass would break if it was pushed on, and that there was no indication to her that the glass would not hold the weight of the door if she pushed on it to open the door, that she had never seen glass break when someone pushed on it, did not know the glass would break if pushed upon, and did not know that it was dangerous to push on the glass of a door, that she had seen people push on glass doors before and nothing happened to them, and she had no particular fear of glass at the time she pushed on the door, that she had pushed turning doors before and had to push on glass to get through them, but nothing happened to her then. There was no evidence in the record to the effect that Rory Flynn knew that that glass in the door was just single strength weak 'windowpane type' glass. Her mother, Mrs. Flynn, among other things, also testified as to the difficulty of opening the door, stating that she found it necessary to use her shoulder, hip and whole body to open the door, that she had no knowledge of the strength of the glass in the door, but she would have anticipated it being of sufficient strength to withstand the opening of the door. Mr. Flynn, father of Rory, testified among other things to the effect that after the injury he tested the door and that it was hard to push open, that he could not look at the glass and tell its relative strength, that he had pushed on glass doors and never had one break, and did not anticipate having one break if you just pushed on it. Mr. O'Neal, a structural engineer, testified among other things in effect as follows: That he examined the premises...