Swift & Co. v. Baldwin

• Decision Date: 14 February 1957
• Docket Number: No. 6938,6938
• Citation: 299 S.W.2d 157
• Parties: SWIFT & COMPANY, Appellant, v. Fred G. BALDWIN, Appellee.
• Court: Texas Court of Appeals

Page 157

299 S.W.2d 157

SWIFT & COMPANY, Appellant, v. Fred G. BALDWIN, Appellee.

No. 6938.

Court of Civil Appeals of Texas, Texarkana.

Feb. 14, 1957.

Rehearing Denied March 7, 1957.

Robertson, Jackson, Payne, Lancaster & Walker, Otis B. Gary, Dallas, for appellant.

Warren G. Moore, Tyler, Gordon R. Wellborn, Rex Houston, Henderson, for appellee.

DAVIS, Justice.

On or about December 14, 1953, Fred G. Baldwin, a pharmacist, was employed by Hughes Drug Store in Tyler, Texas. Swift & Company, hereinafter referred to as Swift, had placed a sign up in front of the drug store to advertise ice cream and other products of Swift that were being sold by Hughes Drug Store. The drug store was situated near two schools and many small school children patronized the drug store during lunch period, purchasing sandwiches, ice cream, etc., for their lunches. The sign that had been placed up in front of the drug store by Swift was about 18 feet long, about three feet high, framed with pine lumber, and had a 'hardboard' surface. It was attached to and parallel with the front of the building in violation of a city ordinance, and had come loose at one end. During the lunch period on this particular day, the wind was blowing about 15 to 20 miles per hour, the sign was swinging back and forth (having come completely loose at one end) and some unidentified person called for some one to do something about the sign before it fell on some of the school children and killed them. Baldwin went immediately to a neighboring store, secured a ladder, placed it up beside the building near the sign, got one Dean Clark to hold the ladder while he, Baldwin, climbed upon it to try to hold the sign until help could come and prevent any injury to the school children. About the time Baldwin reached the top of the ladder, the sign came completely loose, the wind blew it against him, knocked Baldwin from the ladder to the concrete sidewalk, causing severe and permanent injuries.

Baldwin filed suit against Swift & Company; Joe Whitus, the man who erected the sign; and B. G. Johnson, local manager or salesman for Swift. Judgment was for Baldwin against Swift for the sum of $30,000 for personal injuries and for $10,000 for medical expenses, past and future. Swift has appealed and brings forward 17 points of error. The parties will be referred to as in the trial court.

Trial was to a jury and upon completion of the evidence, Swift moved for an instructed verdict; basing its contention largely upon the ground that plaintiff was guilty of contributory negligence as a matter of law. The motion was overruled and in response to special issues the jury found: That Swift caused the sign to be placed within six feet of the outside wall of the drug store building, which was negligence and a proximate cause of plaintiff's injuries; the sign was owned by Swift on the date of the accident; Swift failed to properly inspect the sign, which was negligence a proximate cause of plaintiff's injuries; the sign was insecurely fastened to the building; Swift knew or should have known the sign was insecurely fastened prior to the accident, and knew or should have known this for a sufficient length of time to have repaired the sign and after it knew or should have known this, it failed to repair the sign, which was negligence and a proximate cause of plaintiff's injuries; the sign was swinging over the sidewalk immediately prior to and at the time plaintiff climbed the ladder; school children were passing along the sidewalk in the immediate vicinity of the sign immediately to the time plaintiff climbed the ladder; the children were placed in a position of imminent peril by the sign swinging over the sidewalk; the position of imminent peril of the school children was such as to cause a person of ordinary prudence to go to the rescue; plaintiff climbed the ladder in attempt to rescue the children from injury or possible death; the position of imminent peril of the children would cause an ordinarily prudent person to go to their rescue without time for deliberation as to the consequences; and plaintiff acted as an ordinarily prudent person would have acted under the circumstances; the sign was a roof sign; plaintiff kept a proper lookout for his own safety; plaintiff did not fail to remain out of the place where the sign might fall when he knew or should have known that the sign might fall; the accident was not unavoidable; the accident was not due to an act of God; the sign was not given to Hughes Drug Store by Swift prior to the accident; and the sign had not been delivered by Swift into the exclusive care, custody and control of Hughes prior to the accident. The jury also found that plaintiff did not act in a careless and reckless manner in climbing the ladder to control the sign, and there were not any dangers incident to going upon the ladder in the attempt to control the sign; plaintiff was in a place of danger when he was on the ladder, but he was not negligent in placing himself in such position; and, plaintiff's employer did not instruct him to let the sign alone.

Swift filed a motion for judgment non obstante veredicto, setting up substantially the same grounds as in its motion for instructed verdict, which motion was overruled and judgment was entered for plaintiff in the total sum of $40,000.

By Point 1, Swift complains of the action of the trial court in overruling its motion for judgment non obstante veredicto and in rendering judgment for plaintiff and contends that the undisputed evidence shows there were dangers incident to going up the ladder as a matter of law which dangers were open and obvious; and, therefore, Swift owed no duty to plaintiff. Swift admits, with commendable frankness, that in view of the finding of the jury that it owned the sign at the time of the accident and had not delivered said sign into the exclusive care, custody and control of Hughes Drug Store, Swift must be treated in law as the owner and occupier of the premises and cites the case of City of Greenville v. Pitts, 102 Tex. 1, 107 S.W. 50, 14 L.R.A.,N.S., 979.

In support of its contention that the dangers were open and obvious Swift relies upon the case of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391; and McElhenny v. Theilepape, Tex., 285 S.W.2d 940. We think the facts in this case readily distinguish it from those cases. This case was tried solely upon the theory of the rescue doctrine, which does not appear in either of the above cases. This Swift admits. Swift argues, then, that the highest position that plaintiff could occupy was that of an invitee; that plaintiff was charged with notice of the open and obvious dangers and that it owed no duty to the plaintiff at the time and on the occasion in question. We do not think the question of 'invitee' or 'licensee' or 'no duty' is involved in the case. We think the question presented here was whether or not the school children were in a position of periol, and whether or not the plaintiff acted as a man of ordinary prudence in going to their rescue. The trial court decided that the pleadings and the evidence raised the issues and submitted the issues to the jury. We agree with the trial court and find as a fact that the evidence does raise the issues.

Our view in this matter is supported by Goolsby v. Texas & N. I. R. Co., 150 Tex. 528, 243 S.W.2d 386, wherein the court held that a person acting to save another from imminent peril is not held to the accountability of his own acts as one who acts upon careful choice after deliberation.

Swift also contends that the evidence shows that plaintiff acted in a rash and reckless manner as a matter of law. The record does not support such cotnention. There is no evidence that plaintiff acted in a rash, imprudent or negligent manner; therefore, it cannot be said that he was guilty of contributory negligence as a matter of law. Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, writ ref., N.R.E. Point 1 is overruled.

By Point 2 Swift complains of the action of the trial court in entering judgment for plaintiff, contending 'that there is no evidence to raise the rescue doctrine'. The evidence shows that some 100 to 150 children went in and out the drug store during the lunch period of each day and had to pass directly underneath the sign in entering and leaving the drug store. Plaintiff was going about his business in the prescription department of his employer when some unidentified person shouted through the front door: 'Somebody better do something with this sign, it is loose and is going to kill a bounch of children!' Plaintiff investigated and decided that under the circumstances it was necessary to do something to prevent the danger that existed. He secured a ladder, had some one hold it until he could climb to the top which he thought he could do in safety to himself and thereby prevent injury to others. His error of judgment was not such that would be calculated to amount to an act of contributory negligence under the circumstances. What Baldwin did is more in keeping with the...