Hausman Packing Co. v. Badwey
| Citation | 147 S.W.2d 856 |
| Decision Date | 22 January 1941 |
| Docket Number | No. 10846.,10846. |
| Parties | HAUSMAN PACKING CO. v. BADWEY. |
| Court | Court of Appeals of Texas |
Appeal from One Hundred Third District Court, Cameron County; Jas. S. Graham, Judge.
Action by George A. Badwey against the Hausman Packing Company for injuries sustained when plaintiff fell from defendant's refrigerated truck. From a judgment for plaintiff, defendant appeals.
Reversed and rendered.
Abney & Whitelaw, of Brownsville, for appellant.
Kent & Brown, of Harlingen, for appellee.
George A. Badwey instituted this suit against Hausman Packing Company, a private corporation, seeking to recover damages for personal injuries sustained by him when he fell from a refrigerated truck belonging to the Packing Company.
Plaintiff alleged the defendant was negligent in the following particulars:
The trial was to a jury and upon their verdict judgment was rendered in plaintiff's favor in the sum of $5,000, from which judgment defendant, Hausman Packing Company, has prosecuted this appeal.
Appellant contends that the trial court erred in not giving it an instructed verdict.
The record shows that appellee was an invitee in the truck owned by appellant. He entered the truck for the purpose of purchasing meat for his restaurant. In attempting to get out of the truck he slipped and fell out the back end of the truck, thereby sustaining certain personal injuries. Appellant had been operating this truck for some time. The truck was a refrigerated truck with meat hooks on each side. A number of beef carcasses would be hung upon these hooks and appellant's driver would call upon a number of hotel and restaurant owners for the purpose of selling them meat at wholesale. He would drive up and park near the place of business of his prospective customer, then invite the customer to enter the truck and select such meat as he might desire. Appellant's driver had been calling upon appellee and selling him meat for more than six months. Appellee had entered the truck and selected meat on many occasions. He had ample opportunity to observe the condition of the truck, including the fact that the floor of the truck was often slippery, due to the fact that meat was sometimes cut in the truck causing pieces of meat and bone to fall on the floor, coupled with the drainage from the carcasses hanging in the truck. He also had an opportunity to notice that there was no handhold at the rear end of the truck to assist him in climbing into or alighting from the truck. He also had many opportunities to notice that there was but one step between the floor of the truck and the ground, a distance of some 33 inches. In other words, all of the dangerous conditions with reference to the use of the truck were open and obvious and as well known to appellee as to appellant. There is no allegation that appellee was entrapped or that he was injured as a result of any hidden defect in the truck.
It occurs to us that the fact that the place from which appellee fell was a truck is unimportant, it might as well have been a stationary house. As a matter of fact, when the truck was stopped in the alley near appellee's place of business and the brakes...
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