Mattox v. C. R. Anthony Co.
| Decision Date | 18 June 1959 |
| Docket Number | No. 6287,6287 |
| Citation | 326 S.W.2d 740 |
| Parties | Hattie MATTOX, Appellant, v. C. R. ANTHONY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Griffith & Thomas, beaumont, for appellant.
Strong, Moore, Pipkin, Strong & Nelson, Beaumont, for appellee.
Appellant Mrs. Hattie Mattox of Newton, her nine year old niece, and a maid on April 20, 1957, were shopping in the Beaumont store owned and operated by appellee C. R. Anthony Company. The store is a two-story structure and for the benefit of customers it has a stairway and in addition an escalator, both of which reach from the first to the second floors. The escalator is a moving structure of steps which operates at an angle between the first and second floors, a distance measured along the escalator of about 65 steps.
On the occasion in question appellant and her companions decided to ride the escalator from the first to the second floor. While riding the escalator she claims that it jerked, thereby causing her to fall and sustain injury. Her petition alleged certain specific counts or grounds of negligence, and in addition pleaded that the escalator was under the exclusive control and management of appellee and that it was well aware of the defects in said escalator and the accident in which she was involved but that she could not more particularly allege the defects therein, all of which were well known to the appellee and therefore she relies on the doctrine of res ipsa loquitur. Appellee denied the allegations in this petition and pleaded negligence on the part of appellant, and other grounds of defense not necessary here to mention.
Upon the trial appellant testified that she was 58 years of age, that she and her companions were in appellee's store on the date mentioned doing some shopping and deciding to go to the second floor they entered the escalator, the child preceding her by two steps and after the escalator had moved appellant four or five steps upward it suddenly jerked to such an extent that she lost the grip of her left hand on the left-hand rail and fell backwards, her head striking at the place where the escalator steps come up out of the floor and that as she lay there the steps kept striking her head; that she screamed and called to her maid and told her to hold up her head so that the steps would not strike her head. She stated that she continued to hold onto the right moving handrail but had to turn loose occasionally to keep from being carried upward and that as she lay there her dress became caught in the steps and thereby pulled around her waist. She stated that the escalator continued to operate for about five minutes after she fell; that it operated until her niece reached the second floor, and in another place she testified that it kept operating for a minute or two. The maid testified to substantially the same effect. She stated that she heard the escalator make an unusual sound and saw it jerk and the child fall or lose balance temporarily and appellant fall. She stated that she caught hold of appellant's shoulder and held her head up so that it would not be struck by the steps coming up out of the floor. The maid also said that it seemed a long time before they stopped the escalator. Appellant placed Mr. Clyde E. Young, Manager of the store, on the stand as an adverse witness. It was brought out by him that appellee owned and operated the escalator and that it was udner the exclusive control and management of appellee; that he was under strict instructions from the company to watch over the escalator and in the event of any defective operation being called to his attention it was his responsibility to see that the escalator was repaired; that he had been manager of the store some two or three years and had occasion to observe the operation of this escalator over that period of time, and that it had always functioned perfectly and had had no complaints. He stated that at the time of the incident in question he was about 30 or 40 feet away from the escalator, that a clerk called to him that a person had fallen on the escalator and that he immediately ran to the switch which was on the wall about three feet from the lower end of the escalator and stopped it. Mr. Young further testified that after the button or switch is pressed the escalator will coast four or five feet before it stops; that he helped appellant up and applied some mercurochrome as first aid to her left elbow. Mr. Young further testified that after this incident the escalator continued to run and be used and that it was used that day, both before and after the incident. He testified that the escalator operated all right and that they had periodic inspections of the escalator and its mechanism, and that the last one was around March 17th preceding the date of the accident.
When appellant had concluded her primary case, appellee moved for an instructed verdict and, after argument, the court granted the motion, and this case therefore is before us as a result thereof. In face of an instructed verdict we are required to view the evidence most favorably toward appellant in passing upon the questions involved.
Appellant's brief asserts in a single point that the trial court erred in withdrawing the cause from the jury and granting a peremptory instruction. She contends in this brief that the evidence was sufficient to go to the jury upon four counts of negligence. Because of our view expressed hereinafter under the doctrine of res ipsa loquitur which requires a reversal and remand of this cause, we will not attempt to set out these counts of alleged negligence nor the evidence in support of each, but state that we do not believe that proof under any of these four counts required submission thereof to the jury.
Appellant strongly urges that she raised the issue of negligence in her pleadings under the doctrine of res ipsa loquitur. Appellee counters with the well recognized general rule that the mere fact an accident happens is no proof of negligence. There is an exception to this rule in some, but not all, cases involving res ipsa loquitur. However, for this exception to apply it is necessary to show that the thing which caused the injury complained of must be under the management and control of defendant, and the accident must be...
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...Co., 422 S.W.2d 766, 769 (Tex.Civ.App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.), and Mattox v. C.R. Anthony Co., 326 S.W.2d 740, 743 (Tex.Civ.App.--Beaumont 1959, writ ref'd n.r.e.)--expressed some approval of a rule imposing a high duty of care on elevator owners, but both overlooked ......
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... ... Brewer v. Otis Elevator Co., 422 S.W.2d 766 (Tex.App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.); Mattox v. C.R. Anthony Co., 326 S.W.2d 740 (Tex.App.--Beaumont 1959, ... Page 217 ... writ ref'd n.r.e.). The court correctly points out that, ... ...
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Estate of Lindburg v. Mount Pleasant Independent School Dist.
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