McCrory's Stores Corporation v. Murphy

• Decision Date: 04 September 1942
• Docket Number: No. 14397.,14397.
• Citation: 164 S.W.2d 735
• Parties: McCRORY'S STORES CORPORATION v. MURPHY.
• Court: Texas Court of Appeals

164 S.W.2d 735

McCRORY'S STORES CORPORATION v. MURPHY.

No. 14397.

Court of Civil Appeals of Texas. Fort Worth.

September 4, 1942.

Rehearing Denied October 9, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by Mrs. Vennie Murphy against McCrory's Stores Corporation to recover for injuries sustained in a fall on steps in defendant's store. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Cantey, Hanger, McMahon, McKnight & Johnson and F. T. Denny, all of Fort Worth, for appellant.

Robert C. Pepper, of Fort Worth, for appellee.

SPEER, Justice.

Mrs. Vennie Murphy, a widow, hereinafter called plaintiff, sued McCrory's Stores Corporation, hereinafter called defendant, for injuries sustained from a fall on the steps between what is known as first floor and basement of defendant's store in the City of Fort Worth, Texas.

At a jury trial, the verdict was favorable to plaintiff. Judgment was entered in her favor, motion for new trial was overruled, and defendant has appealed.

Defendant operates a large store and has many patrons who enter its place when open for business. Plaintiff based her suit upon acts of negligence by defendant in the manner of construction and maintenance of the stairway between the first floor and the lower level.

Plaintiff entered the store and attempted to descend the steps to the basement. While on the second or third step from the top her feet slipped from under her and she fell, striking another customer in front of her, who fell partly upon her.

Several acts of negligence are charged against defendant as to the kind and condition of the steps maintained by it, which the public, including plaintiff, was invited to use. The jury findings in response to Special Issues reflect some of the allegations of negligence and proximate causes of the injury. The substance of the verdict was: (1) The stairway as maintained had a smooth slick surface; (2) the stairway was maintained with uneven treads and risers; (3) the treads were maintained at a sloping angle so that the front edge was lower than its back edge; (4) that there was no rough surface on the treads; (5) there were no metal or other strips at the front of the treads; and (6) that the second and third steps (from which plaintiff fell) had no markings to define the outer edges of the steps. Additional answers found that each of said acts constituted negligence and proximate cause of plaintiff's injuries, and found her damages to be $1,225.

There were other allegations of negligence, but they were either not submitted to the jury or were found not to exist.

Defendant pleaded the general denial and alleged several instances of contributory negligence claimed by it to have been the sole proximate causes of any injuries sustained by plaintiff. These allegations were substantially as follows: (a) In failing to observe the location of the steps and in failing to direct her steps so as to secure a sound footing; (b) failing to make use of the handrails provided; (c) in following too closely another patron descending the stairway in front of her and in such close proximity as not to afford her freedom of step; and (d) "* * If there was any moisture upon the steps, same was brought in from the outside by the defendant (evidently meaning plaintiff) on her shoes, and that she was negligent in not seeing that her feet were dry before attempting to descend the stairs in question." All of the alleged acts of contributory negligence except "d" above were submitted to the jury and they were found adversely to the contention of defendant. We shall have something to say later in this opinion about the question which was not submitted. Unavoidable accident was pleaded and submitted to the jury, resulting in a finding that it was not an unavoidable accident.

The first point raised by defendant complains because the court refused to submit its requested peremptory instruction. When this case was first submitted to us, the record did not disclose that defendant had accompanied its motion for an instructed verdict with any specific grounds why its summary instruction should have been given, as required by Rule No. 268, Texas Rules of Civil Procedure. Since submission the record has been supplemented, and it now appears that the rule last referred to was followed. We deem it expedient to withdraw our former opinion, accept and consider the amended record and the point raised, along with other matters presented by defendant's motion for rehearing. The parties will be allowed the statutory time to file motions for rehearing after this opinion is announced in lieu of the original.

It is contended under this point that the testimony failed to show any act or omission by defendant constituting negligence and proximate cause. We are not in accord with the contention. The testimony was ample to raise the issues pleaded and to support the jury's findings thereon. It is now the settled rule in this state that no instructed verdict should be had in a case if, to consider all testimony in its most favorable light to the one against whom the instructed verdict would have been given, a jury might reasonably have found in his favor. The rule requires that all intendments in the testimony must be resolved in favor of the one against whom the instructed verdict is sought.

By the second point it is contended that the verdict wherein defendant was convicted of negligence in several particulars each constituting proximate cause is without support in the evidence and is so opposed to the overwhelming weight of the evidence as to require such verdict to be set aside and the trial court erred in refusing to do so.

The principle of law sought to be applied by defendant, under the point here considered, is supported by many decisions, among which are Shaw v. Centerfield Oil Co., Tex.Civ.App., 10 S.W.2d 144; Leonard v. Smith, Tex.Civ.App., 148 S.W.2d 259; Canales v. Clopton, Tex.Civ. App., 145 S.W.2d 933; Texas Employers' Ins. Ass'n v. Ford, Tex.Civ.App., 93 S. W.2d 227, writ dismissed; and State v. Dickey, Tex.Civ.App., 158 S.W.2d 844, writ refused, want of merit. However, this rule is applicable only when the verdict of the jury is clearly wrong, when measured by the evidence, or was prompted by passion, bias or prejudice, or some other improper motive. 3 Tex.Jur., page 1097, sect. 768. The appellate court may not pass upon the weight of conflicting evidence, but may determine only if there was sufficient evidence to support the verdict. 3 Tex.Jur., page 1117, sect. 782. Of course, if the testimony was of such a nature that ordinary minds could not differ as to the conclusions to be drawn from it, the trial court will take the case from the jury by instructing a verdict. Lee v. International & G. N. R. Co., 89 Tex. 583, 36 S.W. 63.

There were some jury findings in the case at bar which, if considered alone, would raise a serious question in our minds, whether there was a causal connection between the acts of negligence found and the injuries plaintiff claimed to have sustained. But other findings are much more apparent. We find it unnecessary to pass upon those above referred to for the reason, if either of the acts of negligence proximately causing the injuries, found by the jury, is supported by competent testimony, others become immaterial. The jury findings of the slick treads on the steps, their slanting condition from back to front, no corrugated surface and no metal or other edgings, that such maintenance constituted negligence and proximate cause, may not be ignored.

Plaintiff went to defendant's store upon the occasion in question to purchase merchandise and used the stairway to the department where she expected to do her shopping. Without question defendant kept and maintained the stairway as an approach to its basement where it expected to sell merchandise to its customers. It impliedly represented that it was safe for them to use. The defendant was not an insurer of the safety of plaintiff while on the premises as an invitee, yet it was under an obligation to exercise ordinary care to keep the premises, including the stairway in question, in a reasonably safe condition for her protection. R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, 677, writ refused, and cases cited. A different rule applies, however, if the defects or conditions complained of are open, obvious or known to the injured party. Hausman Packing Co. v. Badwey, Tex.Civ.App., 147 S.W.2d 856, 858, writ refused.

Applicable to the point under consideration, plaintiff was lawfully in defendant's place of business as an invitee, and unless she knew or was charged with constructive knowledge of the defects in the stairway, which the jury found to exist, she had a right to assume that they were reasonably safe for her use. She said she had not used the steps during the past year, but over a period of ten or twelve years she had used them perhaps a dozen times; that while she was on the second or third step from the top, her feet slipped out from under her and she fell; she did not know what caused her feet to slip, unless it was because of the slick condition of the steps. It must be conceded that the steps were, in a measure, slick but not unlike many other such stairways in common use, and it may be assumed that she knew of their condition in this respect; but it does not necessarily follow that she also knew, or was charged with knowing, of the dangers incident to their use, because of their worn condition, which caused the tread to slant downward from back to front. She evidently viewed the steps from the top and it cannot be said that the worn and slanting condition mentioned were as a matter of law open and obvious to her.

In Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, the Supreme Court held that one who stepped, or backed off of, an elevated place a little over...