Scheps v. La Rose

• Decision Date: 08 November 1935
• Docket Number: No. 10117.,10117.
• Citation: 88 S.W.2d 557
• Parties: SCHEPS v. LA ROSE ET UX.
• Court: Texas Court of Appeals

88 S.W.2d 557

SCHEPS v. LA ROSE ET UX.

No. 10117.

Court of Civil Appeals of Texas, Galveston.

November 8, 1935.

Appeal from District Court, Harris County; Allan B. Hannay, Judge.

Action by Sidney E. LaRose and wife against Benjamin Scheps. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

King, Wood & Morrow and Newton Gresham, all of Houston, for appellant.

Boyles & Atkinson, Russell Scott, and Frank G. Dyer, all of Houston, for appellees.

LANE, Justice.

On the 13th day of June, 1931, Benjamin Scheps was operating a store in the City of Houston. On said date Mrs. Sidney LaRose, wife of Sidney LaRose, was in the store as a customer of said Scheps and at such time she was in the store as a business guest. There was in the store building a stairway leading from the first floor to the second floor. Mrs. LaRose walked up said stairway to observe certain millinery which Scheps had for sale. The stairway from side to side was about five feet wide. The distance of each step to the one next above was about seven inches, and the treads were about ten inches in width. Down the center of the stairway there was a carpet about twenty-seven inches wide, which left about sixteen inches of uncovered space on each side of the carpet mentioned. After having gone to the second floor, as above stated, Mrs. LaRose started her descent from the same by way of the stairway to the lower floor, and while doing so she fell and by such fall she suffered certain personal injuries. The facts above stated were undisputed.

Sidney LaRose and wife brought this suit against Benjamin Scheps to recover for the personal injuries suffered by her as a result of the fall above mentioned, which they alleged to be $10,000, and for doctor's medical, and hospital expenses, incurred by them by reason of such injuries, amounting to a total sum of $669.35.

Plaintiffs alleged there was placed under the carpet on the stairway carpet- padding in such manner as to cause ridges in the carpet; that the carpet was loose, yielding, movable, and badly worn.

They further alleged that the fall of Mrs. LaRose and the resulting injuries and damages to her were proximately caused by the negligence of defendant Scheps in the following particulars:

"(1) In that on the occasion in question defendant was negligent in maintaining the stairs above described with a carpet thereon which was yielding and movable.

"(2) In that on the occasion in question, the defendant was negligent in maintaining the stairs described above with a carpet thereon having a ridge on each step.

"(3) In that on the occasion in question, defendant was negligent in maintaining the stairs above described with a carpet or runner thereon which was uneven.

"(4) In that on the occasion in question defendant was negligent in maintaining the stairs above described with a carpet thereon having a ridge and depression in same where persons using said carpet would reasonably walk on same.

"(5) In that on the occasion in question, defendant failed to exercise ordinary care to have the stairs above described in a reasonably safe condition for his customers or business guests whom he invited to use the same.

"(6) In that at the time in question, the defendant was negligent in having the carpet or runner upon the steps in his store with a carpet padding thereunder which caused said carpet to be yielding and movable, rather than stationary.

"(7) In that on the occasion in question, defendant was negligent in having the carpet padding under said carpet so placed that it was not as wide as said carpet; and thereby caused a ridge or unevenness on either side of said carpet.

"(8) In that at the time in question, the defendant was negligent in having the carpet padding under said carpet so placed that it did not cover the entire tread of the step, but left uncovered a space of approximately four inches on the tread of said steps, which caused a ridge or unevenness to exist in said carpet.

"(9) In that on the occasion in question, the defendant was negligent in having a carpet or runner down the center of said steps without having the entire steps covered with carpet, which condition caused persons using the steps to walk upon the carpet, and thereby the protecting rail on one side of the steps was situated out of the reach of the persons so using the steps and said rail, therefore, afforded no protection to the party or parties using said steps.

"(10) In that on the occasion in question, the defendant was negligent in having the steps with a riser that was too high for the safety of persons using said steps.

"(11) In that on the occasion in question, the defendant was negligent in having steps with a tread that was too narrow for the safety of persons using said steps.

"(12) In that on the occasion in question, the defendant was negligent in allowing the carpet or runner upon said steps to become loosened or unsecured, so that the same was moved or slipped when stepped upon."

Defendant answered by general demurrer, a general denial, and plea of contributory negligence on the part of Mrs. LaRose.

The case was tried before a jury upon twenty-three special issues, in answer to which they found:

That the carpet was not loose.

The carpet was "yielding," and such condition constituted negligence on appellant's part and was a proximate cause of appellee's injuries.

The carpet did not have a ridge on each step.

The carpet or runner was uneven, but such condition did not constitute negligence on appellant's part.

The appellant was not negligent in not having the entire tread of the steps covered by the carpet or runner.

The banister or rail of the stairway was not situated out of the reach of persons walking on the carpet.

The accident was not unavoidable.

The jury also found that Mrs. LaRose was not guilty of any act contributing to her fall and injuries, as alleged by defendant.

The jury also found, in answer to special issue No. 23, that $5,000, if paid in cash, would be a fair and adequate compensation for the injuries proven to have been received by the plaintiffs on the occasion in question.

At the close of the evidence, defendant by motion asked for judgment in his favor, and, after the return of the verdict of the jury, he again asked for judgment in his favor notwithstanding such verdict, both of which motions were refused.

The court upon the verdict of the jury rendered judgment for plaintiffs against ...