Henry v. Mrs. Baird's Bakeries, Inc., 17261

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation475 S.W.2d 288
Docket NumberNo. 17261,17261
PartiesDonald A. HENRY et ux., Appellants, v. MRS. BAIRD'S BAKERIES, INC., Appellee.
Decision Date24 December 1971

Crumley, Murphy & Shrull, and William M. Murphy, Fort Worth, for appellants.

Cantey, Hanger, Gooch, Cravens & Munn, and William L. Hughes, Jr., Fort Worth, for appellee.

OPINION

LANGDON, Justice.

This is an action for personal injuries sustained by the appellant, Ethel M. Henry, alleging that she slipped and fell on a sidewalk adjacent to appellee's cake plant. The jury found that the bakery had negligently caused a foreign substance to be discharged onto the sidewalk which was a proximate cause of Mrs. Henry's fall and that such foreign substance had been on the sidewalk long enough to be discovered and removed by the appellee, and that its failure to remove it was negligence and a proximate cause. Further, the jury found that the appellant was not guilty of contributory negligence and fixed damages at $28,225.00. The trial court granted appellee's motion for judgment notwithstanding the verdict of the jury and ordered that the appellants take nothing.

The appellants' appeal from such judgment is based upon four (4) points of error. The first two points complain of the action of the court in granting appellee's motion for judgment non obstante veredicto and in overruling appellants' motion for judgment. The third and fourth points complain of the court's refusal to submit issues inquiring as to whether the appellee had a defective downspout and whether having sane was negligence and a proximate cause and whether the condition of the downspout constituted a nuisance and a proximate cause.

By a single cross-point the appellee urges that the court erred in admitting the testimony of the witness, Bessie Lee Hendon.

We reverse and render.

The record in summary reflects that the appellant, Mrs. Henry, a doctor's assistant, slipped and fell in a foreign substance on the sidewalk beside appellee's cake factory on Terrell Street in Fort Worth, on March 14, 1969, while returning to her job. Weather conditions were misty. The sidewalk appeared to be wet with rain.

The wall of appellee's cake factory abuts the sidewalk on Terrell Street. Fastened to the wall are downspouts that carry water off the roof of the building. The downspouts were designed to drain the water off the roof and under the sidewalk and discharge it into Terrell Street.

The sidewalk was slick and slippery where appellant fell. Before she fell she had no grease on her. After she fell there was a greasy substance on her. The substance plaintiff got on herself when she fell was 'greasy, black, smelly stuff'.

Upon returning to her office appellant was seen by witness Hayes. She had black spots on her uniform that had a horrible odor. Witness Hayes went to the scene of the accident the next day and saw that the downspout was not 'connected real good' and that there was 'black looking stuff coming out of it on the sidewalk.' She wiped up some of the substance off the sidewalk, and it looked and smelled like the same substance that was on appellant's uniform the previous day. She also saw holes in the downspout. The substance she found on the drainpipe and on the sidewalk was like a mixture of shortening you might find in the kitchen as opposed to a mud or clay .

Approximately 25,000 pounds of shortening a week and approximately five drums of oil a week are used in the cake factory. The head of the bakery's sanitation department said that the biggest part of his work is seeing to it that the grease is kept in the place where it is supposed to be and not getting all over things--a constant battle in his department.

Evidence produced by the appellant would support a finding that some of the greasy substances used in the plant, such as shortenings and oils, got onto the roof of the factory and then were washed across the roof and into the downspout. If the downspout had no holes in it, these greasy substances would have washed out into the street under the sidewalk rather than on the surface of the sidewalk. The holes and loose-fitting joints in the downspout allowed some of the water and some of the greasy substances to be discharged onto the sidewalk where the appellant fell.

Evidence tracing the route of the greasy substances from the plant onto the sidewalk is as follows: Air vents lead from the different ovens and different work areas inside the plant, where the production is going on, and exhaust out through the roof. Exhaust fans help suck the hot air up from the factory onto the roof. The blades of these fans gather an accumulation of greasy residue. Interiors of the vent pipes accumulate grease and residue. Where the air vents blow out onto the roof they have a mesh wire screen which gets clogged up or gets a greasy coating on it as the hot air is blown out. The air vents have an elbow at the top so that they blow down towards the roof of the factory.

An expert witness who examined the roof and the factory's air exhaust system found that grease accumulates not only in the ducts but out on the area in front of the ducts where the air strikes the roof's surface. He observed some grease accumulated there, although the roofing material at that point had been replaced within a year before the witness had an opportunity to examine the roof. It is common to have grease on the roof of a bakery or cafe where you are exhausting any kind of cooking fumes.

The roof was quite unlevel. Under some weather conditions water falling on the northern part of the roof, where the exhaust fans and air vents were situated, would flow to the south side of the roof. Any small wind from the north would push it to the south where the downspout in question was situated. The water would carry fats and oils along with it, carrying it anywhere the water would go.

Examination of the downspout by an expert witness revealed that the joints were broken loose and a hole was punched in the side of the downspout, the hole being 1-1/2 or 2 long. The hole had been in the downspout six to ten years.

Three days after appellant fell in the foreign substance on the sidewalk, her husband went to the scene. There he found leakage on the downspout and 'quite a bit of grease on the downspout.' He found a liquid running down the sidewalk 'and it looked like water with a thin coat of oil in it.'

During the month following the accident, appellant's husband returned to the scene on a rainy day and found water coming out of the downspout and 'it had the appearance of oil in it.' That day the husband took photographs which are in the record. The photos show water coming out of the hole in the downspout as it was on April 12, 1969, when the husband visited the scene.

An expert witness, Harry M. Bulbrook, a registered professional chemical engineer, with experience analyzing fatty materials for companies manufacturing vegetable oils and shortenings, analyzed the stains on appellant's uniform and made an inspection trip to the cake factory on April 24, 1970, where he picked up some samples to analyze.

He extracted the stain from the appellant's uniform. The material he extracted from the uniform was a fluorescent type of material, 'which was of a greasy nature'. Chemical tests on the unstained part of the same uniform did not show a fluorescence. Fluorescence is a characteristic of fatty and oil materials. One of the specimens the chemist obtained on his trip to the cake factory was from the vent on the roof. Using a series of gradually more sensitive tests, the chemist found in his laboratory that the materials scraped off the vent stack was of practically the same composition as the material he had extracted from the appellant's uniform.

In his laboratory analysis the chemist found that the residues from all the sepcimens he picked up at the cake factory 'fluoresced', which told him that all of them contained a fluorescent fatty oil of some sort.

The chemist found fatty oil on the uniform, and on the air vents that come out onto the roof, and on a specimen that he removed from the downspout.

Another witness, Mrs. Hendon, testified about slipping on the same sidewalk on a rainy day in March or April of 1967. The place Mrs. Hendon slipped was at the base of the second downspout from the west, the same place appellant fell down.

Right after witness Hendon slipped on the sidewalk, she looked at the downspout and saw something dripping out of it. The material dripping from the downspout was also on the sidewalk, and this material was slippery and slick. After that day witness Hendon would avoid walking through that area of sidewalk as she 'didn't never trust that place' any more.

The occupier of real estate having a public sidewalk adjacent to it owes a duty to all citizens who might use the sidewalk. The duty is to avoid rendering the sidewalk unsafe for pedestrians. In Houston Belt & Terminal Ry. Co. v. Scheppelman, 235 S.W. 206, 210 (Tex.Com.App., 1921) the court said: 'With reference to the contention that the city of Houston alone is liable, it is our view that no person, with or without the consent of the municipality, can actively, render a highway or sidewalk of a municipality unsafe for public use, without, as a rule, being liable to a traveler who suffers injury thereby.'

In Texas Co. v. Grant, 143 Tex. 145, 182 S.W.2d 996, 998 (1944) the court designated the manner by which 'foreign substance on public sidewalk' cases should be submitted to the jury.

Additional support for the manner in which the instant case was submitted to the jury is found in another 'sidewalk' case, Service Refining Co. v. Hutcherson, 179 S.W.2d 772, 775 (Waco Civ.App., 1944, writ ref., w.m.).

In the Service Refining Co. case, the pedestrian had slipped in oil on the sidewalk which the defendant had negligently caused to flow out of its service station. The defendant took the position that...

To continue reading

Request your trial
12 cases
  • Werner Enters. v. Blake
    • United States
    • Court of Appeals of Texas
    • 18 May 2023
    ...to prove." Id. (citing Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 138 (Tex. 2004)); see also Henry v. Mrs. Baird's Bakeries, Inc., 475 S.W.2d 288, 294-95 (Tex. App.- Fort Worth 1971, writ ref'd n.r.e.) ("[t]here is no requirement that the conditions of the prior accident or occurrence b......
  • In re Sun Coast Res., Inc., 14-18-00356-CV
    • United States
    • Court of Appeals of Texas
    • 4 October 2018
    ...provided an adequate predicate is established. See In re HEB Grocery Co. , 375 S.W.3d at 502–03 ; Henry v. Mrs. Baird’s Bakeries , 475 S.W.2d 288, 294 (Tex. Civ. App.—Fort Worth 1971, writ ref'd n.r.e.). Insofar as admissibility is concerned, evidence of similar events need not be identical......
  • In re C & J Energy Servs., Inc.
    • United States
    • Court of Appeals of Texas
    • 4 May 2021
    ...courts, provided an adequate predicate is established. See In re HEB Grocery Co., 375 S.W.3d at 502-03; Henry v. Mrs. Baird's Bakeries, 475 S.W.2d 288, 294 (Tex. Civ. App.—Fort Worth 1971, writ ref'd n.r.e.). Insofar as admissibility is concerned, evidence of similar events need not be iden......
  • In re HEB Grocery Co.
    • United States
    • Court of Appeals of Texas
    • 10 July 2012
    ...in some special way; or (3) that the incidents occurred by means of the same instrumentality. Henry v. Mrs. Baird's Bakeries, Inc., 475 S.W.2d 288, 294 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e.) (holding that the trial court properly admitted evidence of prior slip-and-fall at same l......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT