Marshall v. San Jacinto Bldg.

Decision Date20 December 1933
Docket NumberNo. 2483.,2483.
PartiesMARSHALL v. SAN JACINTO BLDG., Inc.
CourtTexas Court of Appeals

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Crawford Marshall against San Jacinto Building, Incorporated. From a judgment for defendant, on directed verdict, plaintiff appeals.

Affirmed.

Benckenstein & Carrington, of Beaumont, for appellant.

Orgain, Carroll & Bell, of Beaumont, for appellee.

WALKER, Chief Justice.

On January 7, 1933, appellant, Crawford Marshall, filed this suit in district court of Jefferson county, against appellee, San Jacinto Building, Incorporated, for personal injuries received by him while entering at the Orleans street entrance appellant's fifteen-story office building at the corner of Orleans and Fannin streets in the city of Beaumont. We do not summarize appellant's pleadings, since they were sufficient to invoke in his behalf every proposition of law arising upon the facts of the case, construed most favorably in aid of his alleged cause of action. The answer of appellee was by general demurrer, special demurrer, general denial, and plea of contributory negligence against appellant. The trial was to a jury with judgment in favor of appellee upon an instructed verdict.

The facts are as follows: At the time of the construction of appellee's office building in 1923, the Orleans street entrance was equipped with a revolving door, occupying a space of about five feet. To the right of the revolving door was a single door about two and a half feet wide, with the same sort of door to the left. The entire entrance was about eleven feet wide. The revolving door was operated from October 1st to about March 1st of each year. During the other months of the year the arms, or wings, of the door were folded back to the right and left, leaving the entrance of about four and a half feet in width unobstructed. The two small doors were seldom used, and it was the rule of the building that they should be locked when not in use. The revolving door did not occupy all of the entrance space set apart for its use by two or three inches on each side of the door as it revolved, but the wings of the door were made to "fit" by a felt attachment, thereby excluding the cold, rain, wind, etc. On the Orleans street side the sidewalk was laid immediately against the wall of the building. The entrance to the building was not flush with the street, but was set back a sufficient distance to operate the revolving door without having it swing over the sidewalk; in revolving, the wings of the door came within three and a half or four inches of the edge of the sidewalk. At the time the building was erected, a granite slab, about thirteen inches wide, was built into the entrance, over which it was necessary to walk in entering the building, and over which the revolving door was operated. The sidewalk was built up to and against this granite slab. The granite slab was flush with the floor of the building on the inside of the entrance. On the left side of the entrance this slab was flush with the sidewalk, but for the entire width of the entrance it was laid level and flush with the floor of the building, while the sidewalk was made to conform to the grade of the street, which sloped towards Fannin street. The result was that immediately opposite the left side of the swinging door entrance this granite slab had an elevation of one-eighth of an inch above the sidewalk; immediately opposite the middle of this entrance the elevation was one-fourth of an inch; immediately opposite the right side of the entrance the elevation was one-half an inch; immediately opposite the extreme right side of the eleven-foot entrance the elevation was seven-eighths of an inch. The revolving door was standard equipment for use in office buildings, skillfully installed, maintained, and operated. The entrance was maintained, as described above, from the construction of the building in 1923 continuously without change up to the time this case was tried in the lower court on the 2d of February, 1933, and there is no suggestion in the record that any change has been made in this condition since that date. The building was used constantly by all classes and ages of people, and a check taken from time to time from the erection of the building up to the time this case was tried showed that as many as 8,000 people a day used the building. Including appellant, there was testimony of only three complaints of injuries received from the operation of the revolving door and only two of these were called to the attention of appellee. We quote as follows from the testimony of three of appellant's witnesses and Mr. Pugh, a witness for appellee, describing the appearance of the entrance to one entering the building from Orleans street, in relation to the granite slab above described and referred to.

Harry Courts, one of the persons who reported an injury, testified:

"Q. A man, if he looks, can see that it is there, can't he? A. I suppose he could, yes, sir."

Harry Bonin, the second person claiming an injury, testified:

"Q. All you had to do was to look and see it? A. I guess it was.

"Q. It was easy to see it there if you would look and see it, wasn't it? A. Yes, sir."

Kyle Wheelus, appellee's vice president, testified:

"Q. There is nothing there to keep anybody from seeing what the condition is in front of the door if they looked to see it is there? A. No, I know of no obstruction to keep them from seeing the door.

"Q. I will ask you whether or not it is open and obvious to the eye to see what was there if a man uses his eye? A. No, sir. Yes, sir."

Mr. J. M. Pugh, the manager of the building continuously since its construction, testified:

"Q. Is it a thing that can be seen, or is it a thing that cannot be seen? A. It is very plain and obvious."

There was nothing in the evidence contradicting or modifying in the least the testimony of the four witnesses to the effect that the slight elevation of the entrance slab above the sidewalk was plain, open, and obvious to all persons using the entrance, provided they looked for it. However, there was testimony to the effect that some persons entered the building without noticing this elevation, and this was the testimony of Courts and Bonin. They testified they had not noticed the elevation prior to their injury, though they had used the building many times. Appellant has made certain photographs exhibits to the statement of facts. We have examined these photographs carefully, and they seem to us to make absolutely certain the conclusion that the elevation of the slab was open and obvious to everyone using the building.

Appellant had lived in Beaumont since 1913 and had been in and out of appellee's building many times prior to the date of his injury. He made frequent use of it in 1928 in visiting his attorney, who represented him at that time in an industrial accident claim, but prior to his injury had not noticed the slight elevation of the entrance slab of granite. His injuries were received in the following manner, as testified to by him: He was entering the building to see one of appellee's tenants upon a legitimate business errand.

"Q. You stood here and talked to Mr. Fork a few minutes you say? (In front of the building.) A. Yes sir.

"Q. And when you left did you leave him there? A. Yes sir.

"Q. And you left him there? A. Yes, sir.

"Q. Then you walked right into the building from there? A. Yes sir.

"Q. Is that correct? A. Yes sir.

"Q. Now what happened to you then when you went into the building? A. Well, as I went to go in, as I recall to the best of my recollection, I caught the panel of the door to go in and somebody was coming out of the door, and as I went in I stumbled and I throwed my hand to catch myself, and when I did it went in between the panels and the—

"Q. Well did you catch—have your hand mashed behind that panel? A. Yes sir.

"Q. While it was rotating? A. Yes sir.

"Q. Was the door moving when you went into it? A. Yes sir.

"Q. No one was coming out as you moved in? A. Yes sir.

"Q. What happened when you reached the inside? Did you fall on the floor? A. No sir.

"Q. You did not? A. No sir.

"Q. You stood up all the way through? A. Yes sir.

"Q. What happened when you got inside? A. My hand was released.

"Q. Which hand was that? A. The right hand.

"Q. The right hand? A. Yes sir.

"Q. State what happened immediately after this injury? A. Well, I went up stairs. I went up to the Sun Company's office and I went back down to Kitching and Kenna's office; I had some business to attend to with them; I don't remember what floor either one of them were on.

"Q. Mr. Marshall go into a little more detail how this accident happened. You have examined that door since the accident happened have you not? A. Yes sir.

"Q. And what do you find there? A. Well I find that there is a granite strip that extends up, I don't know about—to go into the door from the right hand side, I imagine it sticks up about 3/4 ths of an inch; I never did measure it, but by looking at it I would judge it sticks up about that high.

"Q. Go ahead. A. On the side coming out it looks to be, well less than half an inch.

"Q. You say you stumbled on this strip? A. Yes sir.

"Q. That is your recollection? A. Yes sir.

"Q. And do you recall whether you caught the door falling forward, or did you trip on it after you grabbed the panel? A. No, I had my hand on the panel to the best of my recollection, the left hand as it comes around, and I am positive that I tripped with my hand on the panel."

Opinion.

The trial court ruled correctly in instructing the verdict against appellant. The slight elevation of the granite slab at the entrance of the building, upon which appellant relied to...

To continue reading

Request your trial
61 cases
  • Gulf Oil Corporation v. Wright
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 10, 1956
    ...invitee should have known of and appreciated them. Houston National Bank v. Adair, 146 Tex. 387, 207 S. W.2d 374; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, writ refused; A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused; United Gas Corp. v. Crawford, 1......
  • Camp v. J. H. Kirkpatrick Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 4, 1952
    ...burden is traceable to an overstatement of the duty owing the invitee. The oft-cited duty rule in Marshall v. San Jacinto Building Co., Inc., Tex.Civ.App., 67 S.W.2d 372, 374, illustrates the point. It is there stated: "The duty to keep premises safe for invitees applies only to defects or ......
  • Robert E. McKee, General Contractor v. Patterson
    • United States
    • Supreme Court of Texas
    • June 30, 1954
    ...v. Adair, 146 Tex. 387, 207 S.W.2d 374; Hausman Packing Co. v. Badwey, Tex.Civ.App., 147 S.W.2d 856, writ refused; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, writ refused. What the qualification means, of course, is that inasmuch as the invitee has knowledge of the dangers ......
  • Walgreen Texas Co. v. Shivers
    • United States
    • Court of Appeals of Texas
    • August 8, 1939
    ...said disposes of appellant's third, fourth, sixth and seventh assignments. Appellant cites us to the case of Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, writ refused, as directly in point and controlling the instant case. That decision was by this court. We think th......
  • 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