JC Penney Company v. Norris, 16818.
| Decision Date | 29 January 1958 |
| Docket Number | No. 16818.,16818. |
| Citation | 250 F.2d 385 |
| Parties | J. C. PENNEY COMPANY, Appellant, v. J. D. NORRIS and wife, Arleta Maxine Norris, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George W. Leonard, Jr., Sweetwater, Tex., Mays, Leonard & Moore, Sweetwater, Tex., of counsel, for appellant.
Forrest B. Bowers, Lubbock, Tex., Huff & Splawn, Lubbock, Tex., for appellees.
Before TUTTLE, JONES and BROWN, Circuit Judges.
This is an appeal from a judgment for the plaintiffs following a jury verdict in their favor to compensate them for injuries sustained from a fall in the defendant's store. In view of the disposition we feel it necessary to make of the case, only the question as to sufficiency of the evidence to sustain a finding of the defendant's negligence need be discussed. The defendant moved for a directed verdict at the close of the plaintiff's evidence and again at the conclusion of the entire case. It also moved for a judgment n.o.v. after the verdict. The defendant thus preserved for our consideration its attack on the sufficiency of the evidence to support the verdict.
The case made out by plaintiff was substantially as follows:
In the afternoon of June 18, 1956, Mrs. Norris and her friend Mrs. Griffith went to the J. C. Penney store in Sweetwater, Texas. After buying some sundries on the street floor, Mrs. Norris went to examine some merchandise in the curtain department. This part of the store is below the street floor. Access between the two levels is maintained by a flight of five steps. These steps are concrete and are about ten feet long with risers that appear to be of customary height. The treads have lengthwise corrugations moulded in them. A handrail is located in the center of the stairs and there are rails at each end. Mrs. Norris descended these stairs to reach the curtain department. When she had finished looking at the curtains, she ascended the stairs at the same place to the street level. Just as she was putting her foot down on the third or fourth step she saw a soft drink bottle cap on the tread. It was then too late to discontinue the movement of her foot and as soon as it hit the cap she slipped and fell down the stairs, hitting her head on a display table at the lower level. Her back and legs had pained her since the accident and it had been hard for her to sleep. She had been attended by two physicians, neither of whom was called to testify.
Mrs. Norris and Mrs. Griffith were at the curtain counter between 30 to 40 minutes. While there no one else came down the stairs and they did not hear the bottle cap fall on the step. The steps were well lighted.1
The only claim of negligence is the presence of the bottle cap. No claim is based on any defect in the stairs, failure to light the area or other improper maintenance. A recitation of the above facts will indicate that the principal question is whether the plaintiffs made out a prima facie case of negligence on the part of the store for its failure to remove the cap.
There is no real difference between the parties as to the standard of proof required to show the defendant in such a case guilty of negligence. The appellees state in their brief that "a storekeeper is likewise liable even though he did not create the danger, if the danger is shown to have existed for such a time that in the exercise of ordinary care the storekeeper would have discerned the dangerous article." (Emphasis supplied.) A statement of the Texas law that is consistent with this is found in H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, a case cited by both parties: Under Texas law in order to establish liability against the store owner it is necessary to show:
The plaintiff must discharge the burden of proving one of these theories of recovery and although that may of course be done by circumstantial as well as direct evidence negligence must be proved. It will not be presumed. Henderson v. Pipkin Grocery Co., Tex.Civ. App., 268 S.W.2d 703.
Here the plaintiff must rely on the third theory.
The proof, however, fails as a matter of law to support that proposition. There was no direct evidence as to how long the cap was on the steps. Neither were there circumstances from which the jury could infer what length of time had elapsed during which the defendant's agents might reasonably have been required to find and remove it in the exercise by them of ordinary care.
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Garrett v. American Airlines, Inc.
...74 A.L.R.2d 1336 (1960) are, of course, quite different. 3 The principles expressed here are not in conflict with J. C. Penney Co. v. Norris, 5 Cir., 1958, 250 F.2d 385. 4 Hill v. Texas, N. M. & Okla. Coaches, 1954, 153 Tex. 581, 272 S.W.2d 5 Fort Worth & D C. Ry. Co. v. Tidwell, 1922, 112 ......
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Medallion Stores, Inc. v. Eidt, 7714
...prior accident was in any manner or in any respects even remotely similar to appellee's accident. In this connection see J. C. Penney Company v. Norris, 250 F.2d 385, 5 Cir. (1957), in which the plaintiff slipped on a bottle cap while descending a stairway in defendant's store, and where th......
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Reynolds & Huff v. White
...showing that the accident happened at the same place. This rule of law is further supported by the case of J. C. Penney Company v. Norris, U.S.C.A., 5th Cir., 250 F.2d 385 (1957). That action was one by the plaintiff for bodily injuries when she slipped on a bottle cap while descending the ......
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Melton v. Greyhound Corporation
...a period of time that it would have been discovered and removed by the defendant had he exercised ordinary care. J. C. Penney Co. v. Norris, 250 F.2d 385 (5th Cir. 1957); Great Atl. & Pac. Tea Co. v. Giles, 354 S.W.2d 410 (Tex.Civ.App. — Dallas 1962. error ref'd n. r. e.), and the many case......