Great Atlantic & Pac. Tea Co. v. Coleman

• Citation: 259 S.W.2d 319
• Decision Date: 30 April 1953
• Docket Number: No. 12521,12521
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. COLEMAN.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 319

259 S.W.2d 319

GREAT ATLANTIC & PACIFIC TEA CO. v. COLEMAN.

No. 12521.

Court of Civil Appeals of Texas, Galveston.

April 30, 1953.

Rehearing Denied June 25, 1953.

John N. Touchstone, of Dallas, for appellant.

Burns & Grumbles and Harry H. Burns, of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by Thomas Coleman as plaintiff, for recovery of damages alleged to have been sustained by him as a result of the common-law negligence of appellant, The Great Atlantic & Pacific Tea Company, which resulted in a hernia.

Appellee alleged that appellant was negligent in failing to furnish him a reasonably safe place to work. He alleged that he was injured while loading crates of eggs from a stack of egg crates on the concrete floor of the cooler room; that while lifting a crate of eggs he lost his balance and his feet slipped about one-half of a foot and he felt a pain in the lower part of his body. He testified that the floor of the cooler room got wet about every other week, and that one of the officers of appellant would have one of the employees come in and clean the water up; that after the accident, which occurred on Saturday, November 4, 1950, at about 7:00 o'clock in the morning, he continued to work until 12:00, finishing his half day, and that he did not report his accident until Monday morning and that he did not say anything about the floor of the cooler being wet and slippery.

Appellee had worked for appellant for about three years, when he was put in the egg room, where he had been working for four or five months prior to the accident.

In its answer appellant denied generally all of the allegations in plaintiff's petition. It alleged that there was no way in which it could have foreseen the accident or the existence of any physical defect or condition under which appellee could have sustained the claimed injuries; that it had no notice or knowledge of the existence of any claimed dangerous or defective condition in the cooler room on the date of the accident; that plaintiff did not testify to any facts which would bring notice to appellant of such claimed condition and that there was no one so far as the record shows who visited the cooler room except appellee and that he did not inform appellant of any such condition and that in so far as the record shows appellant did not realize that there was such danger. Further appellant contends that there is no finding that there was any structural defect or a defect of any character in the cooler room equipment, and the condition, if any, was open and obvious, and that appellee at all times knew thereof.

In Vol. 22, Texas Law Review, at page 489, it is said, in substance, that the occupier of premises must have superior knowledge of a claimed dangerous condition before it can be charged with either negligence or proximate cause.

It is the established law in this State that where a claimed danger is open and obvious and an employee has equal opportunity to discover the same there is no basis for liability against the master. 29 Tex.Jur. 215 and 216; City of Panhandle v. Byrd, 130 Tex. 96, 106 S.W.2d 660; Clayton v. Chicago R. I. & G. R. Co., 137 Tex. 441, 154 S.W.2d 453.

Appellant also alleged that in an effort to compromise this controversy without litigation it had paid appellee the sum of $220.70, and that in consideration thereof appellee had executed a written release discharging appellant from any and all claims existing by virtue of said accident; that such release was supported by a valuable consideration and that it exists as a bar to any cause of action pled by appellee in this connection.

Mr. H. J. Martin, operating superintendent for appellant, testified that the room referred to as the 'cooler' room is a refrigerated area in appellant's warehouse; that the refrigerating machinery is an ammonia machine which is located just outside of the cooler which has a drain pan and a drain pipe which is supposed to take the water from the drain pan off to the outside; but that there had been occasions, very infrequently, when there was water on the floor and that usually the first employee who discovered such a condition would report it to the foreman, who would immediately take steps to dry up the floor and unstop the drain so that the water would flow off. He testified that they did not have any report from Coleman the day he got hurt.

Mr. H. J. Nowak, an employee of appellant, testified that he had taken the report from appellee on Monday after appellee's injury and that such report was reduced to writing. He testified that appellee made no reference in the statement about his having slipped on account of the floor being wet and slippery.

The only ground of negligence submitted was a failure to furnish appellee with a reasonably safe place to work.

In answer to special issues submitted, the jury found that appellee had sustained personal injuries while working for appellant in the refrigeration room on the occasion in question and that appellant had failed to furnish appellee with a reasonably safe place to work and that such failure was negligence and a proximate cause of the accident and the resulting injuries to appellee. The jury found that plaintiff signed a statement with reference to the accident but that he was told by Mr. Martin that such instrument was nothing more than an authorization for him to return to work and that the evidence contained in such statement was not true and that the statement was a material inducement to get plaintiff to sign such statement. The jury found that appellant did not pay the consideration of $220.70 for a release and that such failure was a material and substantial failure of consideration upon which the release was based and that the injuries sustained by appellee were not the result of an unavoidable accident. They found that the physical pain and mental suffering sustained by appellee were the proximate result of appellee's injuries and that appellee's loss of earnings as the proximate result of his injuries was $4,079.30.

Appellee relies on four counter-points of assigned error, in which he contends there was sufficient evidence to sustain the jury finding that appellant's failure to furnish him with a reasonably safe place to work was negligence, that there was sufficient evidence to sustain the jury's finding that the defendant's negligence in failing to furnish plaintiff with a reasonably safe place to work was a proximate cause of plaintiff's injury.

Appellant relies upon six points of assigned error. Under its Points Nos. 1, 2, 3 and 4 it contends that there was no evidence in the record which would sustain a finding of negligence on the part of appellant in failing to furnish plaintiff with a reasonably safe place to work or to sustain a finding that appellant negligently failed to furnish plaintiff with a reasonably safe place to work or that appellant proximately caused appellee's alleged injuries and that therefore the rendition of judgment against appellant was erroneous.

Appellant contends that an examination of appellee's entire testimony does not reflect the amount of claimed wetness or dampness of the floor or the extent of any wetness and slippery condition. Appellant contends that there is no evidence which would sustain a finding that appellant knew or reasonably could have known of any defective or dangerous condition existing in appellant's cooler or refrigerating room at the time the accident occurred and that nowhere in appellee's testimony is there any fact testified to which would cause appellant to have notice of such claimed defective and dangerous condition.

It is undisputed in the record that there was no notice or knowledge of any dangerous or defective condition existing in the cooler room on the date of the accident, and no testimony of any facts which would bring notice to appellant of such condition, and there is no evidence of any structural defect in the cooler or refrigeration room and no finding of any structural defect therein, and there is no evidence of any hidden danger therein, and that the condition of the room in which the accident occurred was open and obvious and appellee at all times was acquainted with the room.

In the case of Schmidt v. Carper, 270 App.Div. 411, 61 N.Y.S.2d 185, the court announced the rule that the responsibility of an employer to furnish an employee a safe place to work is determined by the reasonable foreseeability of the harmful consequences by reason of the employer's superior knowledge of the hazards which caused the harm, and that if the employee is injured on conditions such that he discerns the situation and appreciates the danger, or if it is so obvious that an ordinary prudent person in employee's position would have discerned the situation, liability is not cast upon the employer.

Appellant contends that under plaintiff's evidence the condition complained of had existed for four of five months prior to the accident and that during that period appellee had worked under the same conditions and that during that time there had been no accident of a similar character and that there could be no foreseeability on the part of either appellant or appellee that such an accident would occur.

Appellant cites the following authorities in support of its contention that a master need not protect a servant from accidents which a reasonably prudent man would not have expected. It contends that there is no evidence is this cause that the defendant could have expected an accident of this character to happen and that appellee's own evidence refutes such a finding. Dullnig v. G. A. Duerler Mfg. Co., Tex.Sup., 87 S.W. 332; Ebersole v. Sapp, Tex.Com.App., 208 S.W. 156; Missouri, K. & T. Ry. Co. v. Graham, Tex.Com.App., 209 S.W. 399; Southern Pac. Co. v. Wellington, 27 Tex.Civ.App. 309, 65 S.W. 219, error refused; Sherrill v. American Well & Prospecting Co., Tex.Civ.App., 176 S.W. 658, no writ; ...