O'Neal v. J. Weingarten, Inc.
| Decision Date | 01 October 1959 |
| Docket Number | No. 6162,6162 |
| Citation | 328 S.W.2d 793 |
| Parties | Doris O'NEAL et vir, Appellants, v. J. WEINGARTEN, INC., Appellee. |
| Court | Texas Court of Appeals |
Adams & Browne, Beaumont, for appellants.
Barrow, Bland, Junell & Rehmet, Houston, Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellee.
This is a slip-and-fall case in which judgment for the defendant was rendered upon an instructed verdict at the close of the plaintiffs' direct evidence. The propriety of directing the verdict is the only matter presented for review.
Appellant Mrs. O'Neal is represented as having been seriously injured when she slipped and fell as the result of stepping on a grape while shopping in one of appellee's supermarkets in the city of Beaumont. In their petition, she and her husband charged the defendant with having been negligent in the following respects: '1) in allowing the grape or grapes to fall on said floor; (2) in failing to clean the floor; 3) in failing to warm customers of the slippery and dangerous condition of the floor; 4) in not maintaining a safe place for customers to walk.' The evidence will be reviewed only in the light of those allegations.
The law of general application in cases of this kind was thus stated in H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, 502, and was reiterated by this court in Beard v. Henke & Pillot, Inc., 314 S.W.2d 844:
'In order to establish liability against the defendant operator of the store it is necessary to show:
'1. That the defendant put the foreign substance upon the floor, or,
'2. That the defendant knew the foreign substance was on the floor and wilfully or negligently failed to remove it, or
There is absolutely no evidence to show how the grape came to be on the floor or that the defendant or any of its employees knew it was there until Mrs. O'Neal had stepped on it. There is therefore none to present an issue under either of the first two theories of liability just mentioned, and none to establish the plaintiffs' first allegation of negligence. The defendant's manager did testify that grapes of different kinds were being offered for sale in the department of the store in which Mrs. O'Neal fell (the produce department) and that, in the nature of things, and as he and such of the defendant's employees as worked in the produce department were aware, it was not uncommon for a grape to fall from its cluster when the cluster was placed in a basket or otherwise handled. But it is not be inferred from that testimony that it was through fault of the defendant or its employees that the grape on which Mrs. O'Neal stepped was on the floor. And there is no evidence from which it may be inferred that the grape had fallen from one of the defendant's storage bins or counters: the proximity of the grape to...
To continue reading
Request your trial
-
Keetch v. Kroger Co.
...v. Medical & Surgical Group, Inc., 334 S.W.2d 520, 521 (Tex.Civ.App.--Waco 1960, writ ref'd); O'Neal v. J. Weingarten, Inc., 328 S.W.2d 793, 795 (Tex.Civ.App.--Beaumont 1959, writ ref'd n.r.e.); Del Camino Courts, Inc. v. Curtice, 323 S.W.2d 355 (Tex.Civ.App.--El Paso 1959, no writ); Beard ......
-
H. E. Butt Grocery Co. v. Bruner, 5487
...Pacific Tea Company v. Giles (Tex.Civ.App.--Dallas, 1962, writ ref., n.r.e.), 354 S.W.2d 410; O'Neal v. J. Weingarten, Inc. (Tex.Civ.App.--Beaumont, 1959, writ ref., n.r.e.), 328 S.W.2d 793. These cases, and many others, are simply restatements of the fundamental law of this State that a st......
-
J. Weingarten, Inc. v. Tyra, 45
...exercised ordinary care. Beard v. Henke & Pillot, Inc., (Tex.Civ.App.) 1958, 314 S.W.2d 844, no writ history; O'Neal v. J. Weingarten, Inc., (Tex.Civ.App.) 1959, 328 S.W.2d 793, writ refused, n. r. e.; H. E. Butt Grocery Co. v. Johnson, (Tex.Civ.App.) 1949, 226 S.W.2d 501, writ refused, n. ......
-
Great Atlantic & Pacific Tea Co. v. Giles
...W. Woolworth Co., Tex.Civ.App., 315 S.W.2d 612; Del Camino Courts, Inc. v. Curtice Tex.Civ.App., 323 S.W.2d 355; O'Neal v. J. Weingarten, Inc., Tex.Civ.App., 328 S.W.2d 793; Sherwood v. Medical & Surgical Group, Inc., Tex.Civ.App., 334 S.W.2d 520; Furr's, Inc. v. McCaslin, Tex.Civ.App., 335......