Great Atlantic & Pacific Tea Co. v. Evans

• Decision Date: 27 October 1943
• Docket Number: No. 8115.,8115.
• Citation: 175 S.W.2d 249
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. EVANS.
• Court: Texas Supreme Court

175 S.W.2d 249

GREAT ATLANTIC & PACIFIC TEA CO. v. EVANS.

No. 8115.

Supreme Court of Texas.

October 27, 1943.

Rehearing Denied December 8, 1943.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Royce O. Evans against the Great Atlantic & Pacific Tea Company for a personal injury sustained by plaintiff while in the discharge of his duties as an employee of defendant and allegedly resulting from the negligence of defendant. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error.

Judgments of District Court and Court of Civil Appeals reversed and judgment rendered for defendant.

Touchstone, Wight, Gormley & Touchstone, of Dallas, for plaintiff in error.

John W. West and Wm. H. Hall, both of Dallas, for defendant in error.

CRITZ, Justice.

This suit was instituted in the District Court of Dallas County, Texas, by Royce O. Evans against The Great Atlantic & Pacific Tea Company, hereinafter called A. & P., to recover damages for a personal injury alleged to have been received by Evans as the result of the negligence of defendant. Trial in the district court resulted in a verdict and judgment for Evans in the sum of $975. This judgment was affirmed by the El Paso Court of Civil Appeals, to which the case was transferred by this Court. This Court granted a writ of error on the application of A. & P.

By his petition in the district court, Evans alleged that on or about June 29, 1939, he sustained a personal injury in the form of a hernia; that such injury was received while in the discharge of his duties as an employee of A. & P.; that such injury was caused by lifting and carrying sacks of potatoes, weighing about 100 pounds each, from the sidewalk in front of A. & P.'s store to the rear thereof, a distance of about 75 or 80 feet; that A. & P. was guilty of negligence, which proximately caused his injury, by requiring him to carry these 100-pound sacks of potatoes the distance above mentioned without someone to assist him, or without furnishing him a truck or some other mechanical means on which to haul them.

Evans testified: That at the time he was injured he was a young man, about 21 or 22 years of age; that at such time he weighed about 150 or 155 pounds; that he was then strong and robust and in good health; that such was his physical appearance; that he was employed by A. & P. as a stock boy and assistant manager; that his usual duties required him to move produce from the sidewalk in front of the store to the interior thereof, sometimes a distance of 75 or 80 feet; that he was injured by moving some sacks of potatoes which weighed about 100 pounds; that such injury was a hernia; that in moving such potatoes he lifted and carried them the distance indicated; that he had been doing the same character of work for several months before his injury without making any complaint, and without suffering any harm by so doing; that in his experience as an employee of A. & P. and other grocery stores he had seen other employees handle sacks of potatoes just as he handled these sacks of potatoes; that some stores had trucks, and others did not; that this store had no truck, and he knew that fact; that he had worked in stores that had trucks, and in stores that did not, and that it was usual for grocery store employees to handle 100-pound sacks of potatoes in the way and manner he handled these sacks.

Evans further testified: That at first he asked the store manager to help him move these sacks of potatoes; that the manager complied with such request and assisted him in moving some of the sacks; that before all of the potatoes were moved the manager was called to wait on a customer; that the...