H. E. Butt Grocery Company v. Russell, 4367
| Decision Date | 03 June 1965 |
| Docket Number | No. 4367,4367 |
| Citation | 391 S.W.2d 571 |
| Parties | H. E. BUTT GROCERY COMPANY, a Corporation, Appellant, v. Aaron H. RUSSELL and wife, Velma H. Russell, Appellees. |
| Court | Texas Court of Appeals |
Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
Dunnam & Dunnam, Waco, for appellees.
Plaintiff, a customer, recovered judgment for personal injuries in this 'slip and fall' case based on jury findings that she slipped on lettuce on the floor of defendant's grocery store; that defendant 'knew that food was likely to get on the floor' at any moment during rush hours; and that defendant's failure to inspect the floor in the area 'as often as same would have been inspected by a person of ordinary prudence under the same or similar circumstances' was a proximate cause of plaintiff's injuries.
The first 22 of defendant's 73 points present the contentions that there is no evidence it placed the lettuce leaf on the floor, or knew it was there; that there is no evidence the leaf was on the floor for such length of time that defendant could or should have discovered it. There is no such direct evidence; consequently, defendant says there is no showing it failed to exercise ordinary care in inspecting the premises. Plaintiff's answer is that circumstances show the lettuce was on the floor for a sufficient length of time that constructive notice is established.
Defendant's store manager testified he did not instruct any employees to inspect the area where plaintiff testified she slipped between 5:00 P.M. and 6:00 P.M., 'a busy time.' Plaintiff's fall was near the checkout counter as she started with her purchases to the front door where there was heavey customer traffic, she testified. The piece of lettuce was larger than her hand. Her testimony was that she did not know how long it had been there, but it had dark spots and 'had been stepped on by somebody else's heel because it was mashed, you know, bruised on the other side.' She did not see it before she stepped on it.
These circumstances did not raise an inference that the lettuce leaf had been on the floor for a sufficient time to impose constructive knowledge of its presence upon defendasnt. They are equally consistent with an inference the leaf had been dropped and stepped on a few seconds, or at any other arbitrary and unknown period of time before plaintiff slipped. This holding is not inconsistent with that in H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, writ ref. n.r.e., where a wet place on the floor was 'dusty, grimy...
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Keetch v. Kroger Co.
...Christi 1966, writ ref'd n.r.e.); Safeway Stores Inc. v. Bozeman, 394 S.W.2d at 537; H.E. Butt Grocery Co. v. Russell, 391 S.W.2d 571, 573 (Tex.Civ.App.--Waco 1965, writ ref'd n.r.e.); H.E. Butt Grocery Co. v. Kirkwood, 384 S.W.2d 790, 791 (Tex.Civ.App.--Corpus Christi 1964, no writ); Furr'......
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H. E. Butt Grocery Co. v. Bruner, 5487
...of time--long, short, or momentary--the stalk was on the floor before the plaintiff's fall. See, H. E. Butt Grocery Company v. Russell (Tex.Civ.App.--Waco, 1965, writ ref.), 391 S.W.2d 571, discussed infra. It does not, therefore, support the implied finding that the stalk was on the floor ......
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H. E. Butt Grocery Co. v. Dillingham
...any duty owing by it to Mrs. Dillingham. Halepeska v. Callihan Interests, Inc., Tex.Sup.Ct., 371 S.W.2d 368; H. E. Butt Grocery Company v. Russell, Tex.Civ.App., 391 S.W.2d 571, writ ref. Plaintiffs in the trial court relied also on Subdivisions 4 and 23, Art. 1995; however, on appeal they ......