McElhenny v. Thielepape

• Decision Date: 11 January 1956
• Docket Number: No. A-5257,A-5257
• Citation: McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940 (Tex. 1956)
• Court: Texas Supreme Court
• Parties: Thomas J. McELHENNY, Petitioner, v. D. C. THIELEPAPE et ux., Respondents.

Page 940

285 S.W.2d 940

155 Tex. 319

Thomas J. McELHENNY, Petitioner, v.D. C. THIELEPAPE et ux., Respondents.

No. A-5257.

Supreme Court of Texas.

Jan. 11, 1956.

Rehearing Denied Feb. 8, 1956.

McKay & Avery, Austin, for petitioner.

Cecil C. Rotsch and John D. Coats, Austin, for respondents.

WILSON, Justice.

This is a suit for personal injuries sustained by Mrs. Thielepape when she fell in a waiting room of the defendant doctor, a pediatrician.At the conclusion of plaintiff's evidence, the trial court granted defendant's motion for an instructed verdict and entered judgment that plaintiff take nothing.This has been reversed and the cause remanded by the Court of Civil Appeals.276 S.W.2d 579.

Mrs. Thielepape had taken her children to the defendant physician and was sitting in the defendant's reception room awaiting her interview with him.As such she was a business invitee on defendant's premises which status imposes upon defendant the duty to use reasonable care to keep the premises in a reasonably safe condition.Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609.But the owner is not an insurer and the owner of premises has no duty to protect an invitee against dangers which are well known and obvious.Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497.

Plaintiff sat on a window seat so that she could observe one of her children playing in the yard.To her immediate left and on the floor was a children's glider or swing consisting of two seats facing each other and mounted on a platform which glided back and forth parallel to the floor.After she took her seat a child moved a small chair near her on her right.After she had waited about an hour a nurse came from the doctor's office, stood across the room from Mrs. Thielepape and motioned to her to come into the doctor's office.She picked up her baby, arose, and started between the glider and the chair.Two children had been playing on the glider for some time.She had observed it moving back and forth about six inches and thought she had room to pass between the chair and the glider.The glider struck her and she fell sustaining injuries for which she sues.

The specific counts of negligence alleged by plaintiff are as follows:

'1.By placing said swing in the reception room;

'2.By placing said swing at the place it was located in the reception room;

'3.By failing to place a sign on said swing warning patients and other persons in the reception room to look out for the swinging swing;

'4.By failing to keep a lookout for children swinging said swing;

'5.By failing to warn persons in the reception room that said swing might swing and hit them;

'6.By asking Mrs. Thielepape to come into the examination room by a passageway going by said swing;

'7.By signaling Mrs. Thielepape to come into the examination room by a passageway going by said swing;

'8.By not accompanying Mrs. Thielepape as she went from the reception room into the examination room.'

We hold as a matter of law that there is no duty supporting negligence.

Under plaintiff's allegations of negligence Nos. 2, 6, and 7 above the Court of Civil Appeals places liability upon the nurse's summoning Mrs. Thielepape to walk through a narrow path into a moving object protruding into a passageway.This is upon analogy to the situation in Hall v. Medical Bldg. of Houston, supra, and cases there discussed.There a door opened outward and a person walking past it was struck and injured by the sudden and unexpected opening of the door.We do not think this an analogous situation.The defendant's room was open.All Mrs. Thielepape had to do in order to have plenty of walking room was to move a small chair placed by a child to her immediate right while she was...