Norwood Bldg. v. Jackson
| Decision Date | 14 October 1943 |
| Docket Number | No. 2534.,2534. |
| Citation | 175 S.W.2d 262 |
| Parties | NORWOOD BLDG., Inc., v. JACKSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Roy C. Archer, Judge.
Action by Maudine Jackson against Norwood Building, Inc., for injuries sustained when struck by the door of a sidewalk elevator used in connection with a building owned by defendant. From a judgment for plaintiff, defendant appeals.
Affirmed.
Hart & Brown, of Austin, for appellant.
Cofer & Cofer, of Austin, for appellee.
Maudine Jackson sued Norwood Building, Inc., a corporation, for damages on account of injury to her left leg when, on April 9, 1942, she was struck by the door of a sidewalk elevator. She alleged in her original petition upon which the case was tried that defendant owned and operated an office building situated on the north side of Seventh Street near Congress Avenue in the city of Austin, Texas, known as the Norwood Building; that the sidewalk elevator was a part of and used in connection with the building and was being operated by defendant at the time of her injury; that on the occasion in question she was proceeding along the sidewalk enroute to her place of work in said building when the trap doors, in and flush with the sidewalk through which the elevator ascends from the basement of said building, were suddenly opened and the elevator began to rise without warning; that the defendant was negligent in certain particulars, among others, as follows: (a) In failing to employ a guard and lookout to warn pedestrians approaching the trap doors at the time they were about to open that said elevator was about to rise to the surface of the walk, (b) in failing to use ordinary care to warn plaintiff that the elevator was about to rise at the time and place in question, and (c) in failing to equip said elevator with some character of mechanical signal or warning device to apprise pedestrians that the elevator was about to rise; and that each of such negligent omissions on the part of defendant was a proximate cause of her injuries and damages. Defendant answered with a general denial and pleas of contributory negligence. Upon the conclusion of all the evidence, plaintiff filed a trial amendment further pleading that defendant was negligent in failing to use ordinary care to see that none other than employees of the Norwood Building operated the sidewalk elevator, and that such negligence was a proximate cause of her injuries. The jury found each of the foregoing issues in favor of plaintiff. The court accordingly rendered judgment in favor of plaintiff for the found damages in the sum of $3,943, and defendant has appealed.
Under the four points in its brief, each of which is properly raised by appropriate assignments, appellant says the judgment should be reversed because: (1) there is no evidence that it owned or operated the Norwood Building, or its sidewalk elevator, or is responsible for the acts of the persons operating such elevator at the time appellee was injured; (2) there is no evidence that any act or omission of appellant or the persons operating the Norwood Building was the proximate cause of appellee's injury; (3) the trial court erred in permitting appellee, after introduction and close of all evidence, to file a trial amendment alleging a new ground of negligence and recovery; and (4) the judgment is excessive.
In order to carry this case to the jury, it was necessary to adduce some evidence tending to show that appellant either owned or was in charge of the operation of the Norwood Building at the time of the injury. In the absence of such evidence, the alleged conduct of appellant could not in law constitute actionable negligence on its part. Moreover, in arriving at the conclusion as to whether appellant did in fact own or operate such building, the jury was not authorized to pyramid one presumption or inference upon another because a presumption of fact can never be made to rest upon another fact presumed. Was there, then, any competent evidence from which the jury might legally infer that appellant either owned or operated the Norwood Building at and prior to the time of this injury and that one or more of the omissions complained of constituted negligence on its part and a proximate cause of such injury?
Appellee testified that she had lived in Austin all of her life; that she was, at the time of her injury, in the employ of a physician who maintained his office on the fourteenth floor of the Norwood Building; on the morning of the accident she was enroute to her accustomed place of work and while proceeding along the sidewalk adjacent to such building she stepped upon one of the trap doors when "something threw my left foot up suddenly with quite a bit of force and threw me forward and then something struck the shin of my left leg"; as she approached the trap doors, no one was standing there giving any warning and no sort of signal or sound was given; after the door struck her, she went inside the building and up the passenger elevator to the fourteenth floor, found two colored porters who were employees of the building, they unlocked the doctor's office for her and she immediately phoned the doctor; in about thirty minutes the doctor arrived in company with Mr. Wells, who was the manager of the Norwood Building, and Mr. Wells then stated: "`that is what we get for having Salvation Army help,' that he was not supposed to touch that elevator without his men being out there, and his men were not out there to give the signal."
Appellant introduced various witnesses who each testified that he worked at the Norwood Building; Williams said he was head porter of the five colored porters employed by the Norwood Building; Franklin and Seales each said they were porters at the building and that Mr. Wells was manager and "boss." Mr. Swenson testified he was engineer at the Norwood Building, had been such continually since the building had been opened up for use and had supervision of its elevators and other mechanical equipment; that the sidewalk elevator could have been equipped with a signal or bell to warn people on the street it was about to rise, but that it was not so equipped. Mr. Wells did not testify. Berry and Carmona were tendered as witnesses by appellant and they each testified that they were in the employ of Capitol Paper Stock Company at the time of the accident and had never been in the employ of the Norwood Building; they had come to the building on the occasion in question, as was their daily custom, in order to get the waste paper which had been collected in the basement during the night before; they were later than usual on the morning of the accident and after they had loaded the paper on the elevator, they looked for the porters of the Norwood Building, to-wit, Williams and Franklin, to carry the elevator up; they were unable to find either of the porters and thereupon...
To continue reading
Request your trial
-
Thomas v. Southern Lumber Co.
...by trial amendment. Rule 66, Tex.Rules of Civil Procedure; Bradley v. Freeman, Tex.Civ.App., 163 S.W.2d 693; Norwood Bldg., Inc. v. Jackson, Tex. Civ.App., 175 S.W.2d 262, error refused. We think the issue was tried by the implied consent of the parties and should be treated in all respects......
-
Dahl v. Akin
...Hence, in such instances, the measure of damages generally rests in the composite judgment and conscience of the jury. Norwood Bldg. v. Jackson, 175 S.W.2d 262, 266 (Tex.Civ.App.--Waco 1943, writ ref'd w.o.m.). Because the limits of the jury's discretion are vaguely defined, it often is sai......
-
Texas Motor Coaches v. McKinney
...to revise the finding complained of, H. & T. C. Ry. v. McNamara, 59 Tex. 255; 3 T.J., p. 1100, Sec. 770. In Norwood Bldg. v. Jackson, Tex.Civ.App., 175 S.W.2d 262, 266, and under circumstances quite analogous, we quote the pertinent language of Judge Hale: "Since varying degrees of physical......
-
City of Garland v. White
...action. Appellants' 11th point is overruled. Allison v. Simmons, Tex.Civ.App., 306 S.W.2d 206, (Ref. N.R.E.); Norwood Bldg. v. Jackson, Tex.Civ.App., 175 S.W.2d 262, (Ref. We have considered all points urged by appellants and find no merit therein. The judgment is affirmed. ...