Renfro Drug Co. v. Lewis, 9841
Citation | 228 S.W.2d 221 |
Decision Date | 15 February 1950 |
Docket Number | No. 9841,9841 |
Parties | RENFRO DRUG CO. et al. v. LEWIS. |
Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Coleman Gay, of Austin, Attorney for Appellant Capital National Bank in Austin.
Hart, Brown & Sparks, of Austin, Attorneys for Appellant Renfro Drug Co.
Will Mann Richardson, of Austin, and Ralph Yarborough, of Austin, for Appellee H. L. Lewis.
Graves & Dougherty, and Looney, Clark & Moorhead, all of Austin, for Appellee Edward Joseph.
H. L. Lewis sued Renfro Drug Company, a corporation, Edward Joseph, doing business as the Motoramp Garage, and the Capital National Bank in Austin, a banking corporation, for damages for personal injuries sustained by him in a fall in a doorway between the garage and the drugstore.
In a non-jury trial Lewis recovered a judgment, the amount of which is not criticized. This judgment was against Renfro and the Bank, jointly and severally, but with judgment over against the Bank in favor of Renfro, by way of indemnity. The Garage, or Joseph, was exonerated from liability to Lewis and Lewis has not appealed. The Bank and Renfro have appealed, and the Motoramp Garage is before the court on the Bank's plea for indemnity or contribution.
No findings of fact or conclusions of law were requested and none were filed by the trial court.
We will first determine whether or not the judgment in favor of Lewis, as distinguished from the judgment for or against any of the other parties, is supported by the law and the evidence, the contention being that Lewis was, as a matter of law, guilty of contributory negligence, and that he had failed to prove actionable negligence on the part of those he sued, which was the proximate cause of his fall.
Mr. Lewis was injured on March 26, 1948. He was then a resident of Marfa, Texas, and 68 years old. While on the way to visit Dr. W. P. Morgan, who officed in the Capital National Bank Building, he sustained his injuries.
The Bank owned the premises occupied by the Motoramp, Renfro's, the office building, and the bank. They are located on the north side of West Seventh Street in Austin. Commencing on the west is the Motoramp Garage, a public storage garage, adjoining on the east is Renfro's Drugstore, and adjoining the drugstore on the east and connected by two doors, is the elevator lobby of the office building, and to the east and adjoining are the Bank's quarters. West Seventh Street, where these buildings are, declines rather sharply from west to east, the fall being 45 inches in the half block occupied by these buildings. There is an opening, a door, between the garage and the drugstore. The picture of the doorway, inserted below, will help explain the facts and various contentions of the parties:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
This picture was taken from inside the drugstore, facing the door and entrance to the garage on the west.
The door is of solid metal, weighing approximately 225 pounds. While the picture hows the door open it is ordinarily closed and was closed when Mr. Lewis opened it to enter the drugstore. This door is kept closed by a standard closing device called a door check. The door has on it three signs. At the top and at about the eye level of the average adult is the sign, 'Caution, Watch Your Step.' The sign is in red letters of about 3 in height on a white background. Then, the sign, 'Renfro No. Two, Prescription Pharmacy,' appears. Below this, and not visible in the picture, is a smaller sign reading, 'Watch Step.'
This door opens into the drugstore and away from the garage and opens directly over the steps, there being no platform inside the drugstore on the same level as the garage floor. The first step taken from the garage to the drugstore is down the height of the top step or riser which is 8 1/2 , and the next step or riser down to floor level of the drugstore is 8 1/8 , or a total difference in floor levels between the garage and the drugstore of 17 1/4 . There is probably a half inch variation in these measurements due to the worn condition of the edges of the step. The width of the tread or step was 17 .
Also, to be noted is the fact that this door is recessed from 12 to 14 in the garage side of the wall.
As negligence proximately causing his injuries, Mr. Lewis pleaded:
1. The door opened immediately upon an abrupt step-down, without having a platform inside the door on a level with the garage door;
2. The heavy solid door masked from Mr. Lewis the difference in floor levels;
3. The solid door opened inward over the step-down, preventing the user from seeing the step-down in time to observe and avoid the danger;
4. The door closer was adjusted in such a manner that it required strength to overcome a strong initial tension and then opened easily, causing the user to plunge rapidly through the door without an opportunity to observe the dangerous step;
5. The strong hydraulic automatic closer was out of adjustment, causing the door, after being opened, to jerk back rapidly, forcefully, and unexpectedly against the user;
6. The tread of the step was of marble, which had become worn, slick and uneven;
7. The step was worn so that it sloped forward and downward;
8. The lack of a corrugated metal or rubber nosing for the front edge of the step, to prevent slipping;
9. The lack of a handrailing by the steps;
10. The provision and maintenance of the entrance and steps in the manner and condition in which they were on March 26, 1948;
11. The risers of the steps were unusually high and unsafe, and
12. The steps were of unusual and unsafe dimensions, in that the sum of the width of the tread and the height of the riser was so great that the steps could not be used without interruption of the normal gait of the average user, and Mr. Lewis was using his normal gait, which was approximately that of the average user.
All of such alleged grounds of negligence are established by the physical facts, except those relating to the state of repair of the door check and the manner of its operation.
We have no way of knowing upon what facts the trial court based its judgment. We are of the opinion, however, that all grounds of negligence have ample support in the evidence, except No. 5 relating to the door check being out of repair. As to this ground the evidence is not sufficient to support a judgment.
Mr. Roy L. Thomas, Mr. Clifford James, and Mr. Martin Stephen Kermacy, architects, testified concerning this door and step:
Mr. Thomas: * * *
Mr. James: 'As you know in physics when you open a door, you exert a certain force, and in the exertion of force against a heavy metal door, or of any door, if it opens directly over a flight of stairs, you throw the dody out of a certain balance; you get it off center if you push on the door and find yourself down a flight of stairs, it is much easier to lose control of your body equilibrium than if the door opened out before you walked through there.'
Mr. Thomas:
Mr. Kermacy testified that the maximum riser recommended for a stair in a public building is 7 3/4 and that the width of a tread should be a minimum of 9 1/2. And if, as in this case, the width of the tread is almost doubled the safety of using the step has been affected in that-
According to Mr. Thomas the tread should not have been 9 1/2 , and that an irregular tread would break a man's stride, explaining:
* * *
Mr. James further testified that these steps were unsafe because, 'there is no safety tread used on the step, such as rubber, terrazo, or other corrugated material which is in common usage and has been for a number of years.'
Mr. Lewis was on his way to visit Dr. Morgan when he was injured. He had been to see Dr. Morgan before, and on one such occasion while he parked his car in the motoramp he did not see or use the door pictured...
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