Merchants Bldg. Corporation v. Adler

• Decision Date: 30 October 1937
• Docket Number: No. 12261.,12261.
• Citation: 110 S.W.2d 978
• Parties: MERCHANTS BLDG. CORPORATION v. ADLER.
• Court: Texas Court of Appeals

110 S.W.2d 978

MERCHANTS BLDG. CORPORATION v. ADLER.

No. 12261.

Court of Civil Appeals of Texas. Dallas.

October 30, 1937.

Rehearing Denied December 11, 1937.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by Harry Leeson Adler against the Merchants Building Corporation. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for another trial.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellant.

Emil Corenbleth and Sam Passman, both of Dallas, for appellee.

YOUNG, Justice.

Appellee instituted suit against appellant in the trial court to recover damages for personal injuries alleged to have been sustained on the premises of appellant, October 18, 1934; appellee complaining that such injuries resulted by reason of the condition of some concrete steps located on the north side of a loading wharf and leading from the street level to the wharf floor of said building. The case was tried to a jury and, on conclusion of the evidence, the trial court overruled appellant's motion for an instructed verdict, and the jury returned a verdict in favor of appellee, plaintiff below. Judgment was entered for plaintiff on said findings. Appellant has taken proper steps on appeal, and this case is now before us for review.

The jury answered to given issues that: Appellee fell on the top step of the loading wharf in question; that appellee was returning to his automobile at the time of such fall; that there was a depression in the top step in question; that the metal binding on said top step of the loading wharf stuck out above the concrete of said step; that there was negligence in said conditions above described, and that such were proximate causes of plaintiff's fall. The jury also found, under issues submitted, that appellee did not fail to keep a proper lookout for his own safety in the use of said steps at the time; that plaintiff stepped on the corner of the top step of the loading wharf on his right heel at the time, but that such was not negligence on his part. The jury also found that plaintiff sustained injuries in diminished earning capacity, in the amount of $2,000, and for physical pain and suffering to the amount of $500; same being submitted in separate issues.

Appellant's first assignment of error is to the failure of the trial court to give peremptory instruction in its favor on the grounds, generally, that the undisputed evidence disclosed contributory negligence of appellee as a matter of law, and that there was no evidence in the record upon which the jury could base actionable negligence on the part of appellant. We quote the substance of said assignment: "The undisputed evidence showed that plaintiff was guilty of contributory negligence, as a matter of law, in failing to look where he was walking and in placing his right foot where he did place it, and in placing the heel of his right foot on the outer edge or corner of such step with the ball of his right foot suspended in the air; and further, because no actionable negligence was proven against the defendant in this cause, in that the only proof in this cause showed a condition of that part of the step in question, that is the right-hand corner of same, to be in a condition at a place and point where, as a matter of law, this defendant would not be expected to anticipate or foresee that any one would be walking thereon; and further, because the defect, if any, was open and apparent and of such nature that the plaintiff was not excused, as matter of law, from failing to observe it under the circumstances."

It is the duty of the reviewing court, passing upon assignments of this character, to reject all evidence favorable to the adverse party, and to consider only the facts and circumstances which tend to sustain the verdict; and if the jury, in an honest and impartial effort to arrive at the truth, might have reached the conclusions embodied in the verdict, we should not set it aside. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139. Appellant urges strongly that appellee's fall and alleged injuries resulted from his own negligent acts and conduct on the occasion in question, and were not properly attributable to the condition of the concrete steps. Testimony of the plaintiff Adler is quoted extensively to demonstrate no care was exercised by him in the use of the stairway at said time, nor where he stepped thereon. If the record before us is conclusive as to this, it is our plain duty to sustain the assignment; but is such the inevitable deduction to be drawn from all of the testimony? True, appellee's statements, after much examination, are confusing on material issues, but not beyond reconciliation. He says, in substance, that he did not look; again that he did notice the steps at the time. Further, that he was walking naturally, and that no fall would have resulted from placing his heel, as he did, on the extreme corner of the step, had it not been caught and held by the metal binder.

Inconsistency in the testimony of plaintiff, as it may appear in the record, is like any other conflict, within the peculiar province of the jury to reconcile. In view of the fact that this case will be reversed on other grounds, we deem it inadvisable to dwell at length on the testimony in question, or to express any further opinion as to same. Whether appellant has discharged the full measure of its legal duty toward appellee, as an invitee, or whether appellee was negligent or not, are questions under all of the testimony on which reasonable minds might differ. Hence, we conclude that the trial court did not err in overruling the peremptory instruction. In Derichs v. O. K. Auto Parts & Sales Co., 92 S.W.2d 465 (writ dismissed), the El Paso Court of Civil Appeals affirmed the findings of the jury under facts very similar to this case.

Appellant states in his reply brief that, in the Derichs Case, supra, the question of contributory negligence on the part of plaintiff therein was not involved or raised. As we read this case, such issue was obviously both pleaded and raised by evidence, because, from the court's opinion, there was an express jury finding thereon in favor of the plaintiff. See, also, Berwald v. Turner (Tex.Civ.App.) 52 S.W.2d 112 (writ refused).

Our views above expressed are germane to appellant's assignments of error, Nos. 1 to 5, inclusive, and propositions thereunder.

Appellant's propositions Nos. 6 and 7 complain of an entire want of evidence to support the findings in issues Nos. 5 and 8, that the alleged defective corner of the step was "caused by the negligence of the defendant"; the only testimony bearing thereon being from appellant's building manager, to the effect that, "some truck must have backed in there and hit that very corner." Said building manager also testified that the condition of the steps had been the same for a long time prior to October 18, 1934. The owner of a building is under an implied duty to keep such place in a reasonably safe condition, and is liable for injuries resulting from known defects, or such as he should have known; in this instance, it is charged that appellant failed in its duty as to the repair of the steps. Should the same state of facts exist on a retrial, it would be well for the plaintiff below to restate the issues involving the steps in question, following his pleading and proof, in order that the legal liability of defendant, if any there be, may be thus determined.

Passing to appellant's assignments of error involving the rejected charge in connection with the submitted issues of unavoidable accident, we call attention to the test laid down in Dallas Ry. & Terminal Co. v. Darden (Tex.Com.App.) 38 S.W.2d 777, and the numerous cases where same is discussed. Upon retrial, if the trial court should again conclude that this issue is raised, then the suggested form of submission offered by Judge Taylor, in the case of Southern Ice & Utilities Co. v. Richardson, 95 S.W.2d 956 (Tex.Com.App. opinion adopted by Supreme Court), be used in disposing of this issue. It may be conceded that both the holding of the Amarillo Court of Civil Appeals in McClelland v. Mounger, 107 S.W.2d 901, 906, and Magnolia Coca Cola Bottling Co. v. Jordan, 47 S.W.2d 901, 906 (El Paso Court of Civil Appeals reversed by the Commission of Appeals on other grounds 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513) are in support of appellant's refused special issue No. 2, as being a proper instruction. We feel, however, that the last (adopted) suggestion from our Supreme Court should be presently followed as to procedure relative to this rather elusive question of fact.

Appellant's next assignment complains of the refusal of the trial court to submit the following defensive issue: "Do you find from a preponderance of the evidence that the Merchants Building Corporation ought reasonably to have foreseen or anticipated, prior to the time in question, that someone would, in descending the step in question, place his foot at the point where the concrete was lower than the metal strip, if it was lower than such strip?"

The doctrine of reasonable anticipation of consequences in negligence cases is well settled in this state. The action of the trial court was evidently based upon the fact that such issue was not pleaded as an affirmative defense, and that, under the state of the defendant's pleadings, it was fairly covered by the given issues of proximate causes Nos. 6 and 9. Appellant argues that: "It is elementary that any issue which would be a complete defense to plaintiff's suit and upon which the plaintiff has the burden of proof, in order to make out a case, is raised by the general denial of defendant." This may be true, but upon another trial, if the facts be similar, such issue specially plead would be the better procedure, thereby coming well within the law of Fox v. Dallas Hotel Co., 111 Tex. 461...