J. Weingarten, Inc. v. Tyra, 45
Decision Date | 16 July 1964 |
Docket Number | No. 45,45 |
Citation | 381 S.W.2d 215 |
Parties | J. WEINGARTEN, INC., Appellant, v. Leola TYRA et vir, Appellees. |
Court | Texas Court of Appeals |
B. Jeff Crane, Jr., Vinson, Elkins, Weems & Searls, Houston, for appellant.
W. A. Chanslor, Jr., Coleman & Chanslor, Houston, for appellees.
This is a suit arising out of bodily injuries allegedly sustained by Mrs. Leola Tyra, Appellee, when she tripped and fell over a small movable concrete block approximately 8 to 10 inches high and 12 inches wide at the base, such block being located on the parking lot outside a grocery store on Lyons Avenue, owned and operated by J. Weingarten, Inc., Appellant.
Judgment was entered in this case on the 26th day of July, 1963, and Appellant's motion for a new trial was overruled on the 13th day of September, 1963. This appeal has been regularly perfected since that time. In the court below, appellees were plaintiffs and appellant was defendant.
This case was submitted to the jury upon eight (8) Special Issues to which the jury made the following findings:
Issue No. 1) Defendant, its agents and employees, knew the cement block was on defendant's parking lot.
Issue No. 2) Defendant, its agents and employees, allowed the cement block to remain for an unreasonable length of time.
Issue No. 3) Defendant, its agents and employees, in allowing the cement block to remain for an unreasonable length of time, was negligent.
Issue No. 4) Such negligence was a proximate cause of the plaintiff's injuries.
Issue No. 5) Plaintiff did not fail to maintain a proper lookout.
Issue No. 7) The occurrence was not an unavoidable accident.
Issue No. 8) Plaintiff's damages are $850.00.
It is the Appellant's contention by points 1, 2, 3, 4, 5 and 6, that there is no competent evidence that Appellant knew the small concrete block was present on the parking lot outside the grocery store and negligently failed to remove it, and as a matter of law, Appellee should be permitted no recovery. We sustain this contention.
Appellee, Leola Tyra, testified:
'Q. You told us you were shopping in Weingartens back on September the 30th, 1961?
'A. Yes sir.
'Q. And that is the Weingartens on Lyons Avenue?
'A. Yes sir.
'Q. Did you shop there often?
'A. I do lots--an awful lot of my shopping there.
'Q. Well, will you say you shop there once a week or more often?
'A. Yes sir.
'Q. Which--once a week?
'A. Once a week.
'Q. And how long did you shop there before this accident happened?
'A. The week before.
'Q. Well, how long all together have you been shopping there?
'A. Oh--from seven to eight to nine years.
'* * *
'Q. Yes, ma'am. All right, can you tell us how you came to fall down over the stone?
'A. Well, I had never seen this stone before--you know--I have been to the store many, many times but I had never noticed that stone before.
'* * *
'* * *
Molly Scofield, an employee of Weingartens at the time Mrs. Tyra allegedly received her injuries, gave the following testimony:
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Mavis Stanislew, who was also an employee of Weingartens at the time of this accident, testified as follows:
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The law does not impose upon a merchant the duty of being an insurer of the safety of his patrons while on the premises; his duty is to exercise ordinary care to protect them from accident and injury. But such a duty arises only when the dangerous thing, or condition, is known to the merchant, or when it is shown to have openly existed for such a length of time as that a person of ordinary prudence would have discovered it and removed the danger. Worth Food Markets, Inc. v. Le Baume, (Tex.Civ.App.) 1938, 112 S.W.2d 1089, writ dismissed; Montfort v. West Texas Hotel Co., (Tex.Civ.App.) 1938, 117 S.W.2d 811, writ refused; Graham v. F. W. Woolworth Co., Inc., (Tex.Civ.App.) 1925, 277 S.W. 223, writ dismissed; Great Atlantic & Pacific Tea Co. v. Logan, (Tex.Civ.App.) 1930, 33 S.W.2d 470, no writ history; McElhenny v. Thielepape, 1956, 155 Tex. 319, 285 S.W.2d 940; R. E. Cox Dry Goods Co. v. Kellog, (Tex.Civ.App.) 1940, 145 S.W.2d 675, no writ history; Smith v. Safeway Stores, Inc., (Tex.Civ.App.) 1943, 167 S.W.2d 1044, no writ history.
It is well settled under the law of this state, in order to establish liability against the Appellant, in a case of this kind, it is necessary to show:
1) That the Defendant put the foreign substance on the premises, or
2) That the Defendant knew the foreign substance was on the premises and willfully or negligently failed to remove it, or
3) That the foreign substance had been upon the premises for such a period of time that it would have been discovered and removed by the Defendant had the Defendant exercised ordinary care. Beard v. Henke & Pillot, Inc., (Tex.Civ.App.) 1958, 314 S.W.2d 844, no writ history; O'Neal v. J. Weingarten, Inc., (Tex.Civ.App.) 1959, 328 S.W.2d 793, writ refused, n. r. e.; H. E. Butt Grocery Co. v. Johnson, (Tex.Civ.App.) 1949, 226 S.W.2d 501, writ refused, n. r. e.; Del Camino Courts, Incorporated, v. Curtice, (Tex.Civ.App.) 1959, 323 S.W.2d 355, no writ history; J. Weingarten, Inc. v. Reagan, (Tex.Civ.App.) 1963, 366 S.W.2d 879, no writ history.
In a case of this kind the burden of proof is upon the plaintiff, (Appellee) to introduce testimony of probative force establishing negligence on the part of the defendant (Appellant). The mere happening of the event does not, of itself, infer negligence. We have carefully examined and analyzed the testimony in this record and find ourselves unable to agree with Appellees that they have sustained their burden of proof by bringing forth testimony of probative force creating a legal liability against the Appellant. There is an entire absence of testimony in this case that the Appellant or its agents and employees knew that the stone block was on the parking lot at the time of this accident. The evidence is undisputed that no one knew how long the stone block had been on the parking lot prior to Mrs. Tyra's fall. The mere presence of the stone block on the parking lot is insufficient to warrant an inference that the store keeper placed or left it there or had knowledge to its presence or that it had been there long enough to enable the store keeper to discover and correct it by the exercise of ordinary care. The Great Atlantic and Pacific Tea Company v. Giles, (Tex.Civ.App.) 1962, 354 S.W.2d 410, writ refused, n. r. e.; Dill v. Holt's Sporting Goods Store, (Tex.Civ.App.) 1959, 323 S.W.2d 644, no writ history.
Appellee's testimony, considered in the most favorable light, does nothing more than raise a suspicion or surmise, and amounts to no more than a scintilla of evidence, concerning whether or not the Appellant, its agents, and employees, knew the cement block was on the Appellant's parking lot which has long been held to be insufficient to raise an issue of fact. Speer, Law of Special Issues in Texas, 1932, Sec. 165; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; The Great Atlantic and Pacific Tea Company v. Giles, supra.
In the case of Houston Fire & Casualty Ins. Co. v. Biber, (Tex.Civ.App.) 1940, 146 S.W.2d 442, dism. judgm. cor., the court says, 'If the probative force of evidence be so weak that it raised only a surmise or suspicion of the existence of a fact sought to be established, that evidence in legal contemplation is 'no evidence' and will not support a finding which comprehends the existence of the disputed fact.' Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Austin v. Neiman, (Tex.Comm.App.) 14 S.W.2d 794.
In Rawls v. H. O. Hochschild, Kohn & Company, Inc., 207 Md. 113, 113 A.2d 405, 410, 62 A.L.R.2d 124. The Court of Appeals for Maryland in finding no error in the...
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