Latimer v. Walgreen Drug Co. of Tex., 6076

• Decision Date: 25 September 1950
• Docket Number: No. 6076,6076
• Citation: 233 S.W.2d 209
• Parties: LATIMER v. WALGREEN DRUG CO. OF TEXAS.
• Court: Texas Court of Appeals

Page 209

233 S.W.2d 209

LATIMER v. WALGREEN DRUG CO. OF TEXAS.

No. 6076.

Court of Civil Appeals of Texas, Amarillo.

Sept. 25, 1950.

Singleton, Trulove & Edwards, Amarillo, for appellant.

Simpson, Clayton & Fullingim, Amarillo, (Cleo G. Clayton, Jr., Amarillo, of counsel), for appellee.

PITTS, Chief Justice.

This suit was instituted by appellant, Bertha Latimer, a feme sole, against appellee, Walgreen Drug Company of Texas, a corporation, and against C. S. Lambie, individually, and C. S. Lambie and Company, a corporation, seeking to recover damages in the sum of $9,462.25 per personal injuries sustained by her by reason of the negligence of the named defendants. However, no appeal has been perfected as against C. S. Lambie individually or C. S. Lambie and Company. This case was tried jointly with a companion case bearing the next serial number on both the trial court's docket and this court's docket styled George W. Kennedy et ux. v. Walgreen Drug Company of Texas, alleging damages in that case in the sum of $11,070 by reason of injuries sustained by George W. Kennedy's wife, Virgie Kennedy, at the same time and in the same manner that appellant herein was injured. The cases were consolidated and tried together in the trial court with the same result in each case and they have been likewise consolidated in this court by request of the parties and are here presented in the same manner and on the same briefs.

The cases were tried to a jury but the trial court, after the evidence closed, upon its own motion, without taking any action upon the motions of all defendants for an instructed verdict in their favor, instructed a verdict for all of the defendants and against appellant herein for want of sufficient evidence to support her alleged claims for damages. Appellant perfected her appeal against Walgreen Drug Company of Texas alone and presents her appeal to this court upon three points of error. She charges that there was sufficient evidence to raise jury issues on the questions of negligence, proximate cause and contributory negligence.

The record reveals that Walgreen Drug Company owns and operates a drugstore located in a building on the southwest corner of the intersection of Polk and Eighth Streets in Amarillo, facing Polk Street, with an entrance at the northeast corner of the store facing the intersection and another entrance on Eighth Street toward the back of the store. The latter entrance or door is not used by the public but is used by the help in the store and for deliveries made to the store. About three feet back of this door is an elevator door opening on Eighth Street and leading to appellee's store basement. The north wall of the drugstore building adjacent to Eighth Street is approximately 100 feet or more in length. There are sidewalks adjacent to the drugstore building and separating it from the street curbs both in front on Polk Street and along the north side on Eighth Street. The alleged injuries occurred on the sidewalk on Eighth Street on the north side of the Drugstore. It was stipulated that the sidewalk where the alleged injuries occurred is 16 feet wide. For several days before the alleged injuries on March 5, 1948, there was a period of very cold weather in Amarillo accompanied by rain, snow and sleet, covering the streets and sidewalks, including the sidewalk in question, with a thick coat of ice. Just east of the two street doors opening on Eighth Street there was a pile of scrap lumber of some sort piled on the sidewalk against the north wall of the drugstore covering about three feet space measured from the wall on the sidewalk and extending several feet along the wall. Appellant herein and Virgie Kennedy, one of the appellants in the companion case, were walking along the sidewalk on Eighth Street going east soon after two p.m. o'clock on the alleged date expecting to enter the Walgreen Drugstore at the front corner street entrance. They had come onto the sidewalk from another business establishment door opening on Eighth Street only a short distance west of the back of appellee's drugstore and they were walking next to the wall on the ice covered street until they reached the pile of scrap lumber in question. They started around the scrap lumber when both of them slipped on the ice and fell which resulted in the alleged injuries.

Appellant alleged that appellee, its agents and employees, caused the scrap lumber to be piled on the sidewalk at the place and time in question and were negligent in permitting the sidewalk in question to be and remain in a condition dangerous for the safe travel thereon of pedestrians; that such obstruction blocked the passageway on the sidewalk in violation of a city ordinance, constituting negligence on the part of appellee, which was the proximate cause of appellant's falling that resulted in her injuries; that appellee and its agents and employees were negligent in their failure to act as a reasonably prudent person would have done in clearing the sidewalk in question and in making it safe for pedestrians and that such negligence proximately caused the injuries; that appellee and its agents and employees were likewise negligent in allowing the ice and snow to remain upon the sidewalk adjacent to its building in violation of a city ordinance and that such was the proximate cause of appellant's fall that resulted in her injuries.

Appellant and her witnesses described the alleged obstruction on the sidewalk as...