Walgreen-Texas Co. v. Shivers

• Decision Date: 14 January 1943
• Docket Number: No. 4095.,4095.
• Citation: 169 S.W.2d 271
• Parties: WALGREEN-TEXAS CO. v. SHIVERS et ux.
• Court: Texas Court of Appeals

169 S.W.2d 271

WALGREEN-TEXAS CO. v. SHIVERS et ux.

No. 4095.

Court of Civil Appeals of Texas. Beaumont.

January 14, 1943.

Rehearing Denied February 17, 1943.

Appeal from District Court, Jefferson County; W. Tom Kenna, Judge.

Suit by W. G. Shivers and wife against the Walgreen-Texas Company to recover for injuries sustained in a fall on the defendant's premises. Judgment for the plaintiffs and the defendant appeals.

Judgment affirmed.

Orgain, Carroll & Bell, of Beaumont, for appellant.

C. A. Lord, of Beaumont, and Shivers & Keith, of Pt. Arthur, for appellees.

WALKER, Chief Justice.

This is a second appeal. For a full and complete statement of the pleadings, the facts and the controlling issues we refer to the opinions on the former appeal; by this court Walgreen-Texas Co. v. Shivers, 131 S.W.2d 650, by the Supreme Court, 137 Tex. 493, 154 S.W.2d 625. On this trial the jury found that Mrs. Shivers tripped on the edge of the raised platform and was thereby thrown down upon the floor and that she sustained an injury therefrom; that it was negligence on the part of the defendant to have and maintain the raised platform of the width it was and of the height it was, and that each of these acts of negligence was the proximate cause of the injury to Mrs. Shivers. The damages were assessed at seven thousand dollars. The jury further found that the accident was not an unavoidable accident; that Mr. Shivers was not guilty of negligence in failing to assist his wife to leave the soda fountain; that Mrs. Shivers did not fail to keep a proper lookout when she took her seat on the stool in question; that she did not fail to keep a proper lookout when she attempted to leave the stool and platform; that she did not know that she was sitting upon a stool upon a platform; and that she did not forget in attempting to leave her seat at the soda fountain that the stool upon which she was seated was situated upon the platform in question; that in attempting to leave the platform she did not back away; that she did not fail to observe the location and size of the platform on the occasion in question, and that she did not fail to exercise ordinary care to observe the step as she left said platform. Appellant has regularly prosecuted its appeal from the judgment entered against it on the jury's verdict.

The first point is that the lower court erred in refusing to instruct the verdict in appellant's favor. The point is overruled. On this trial the pleadings of the parties, the evidence and the controlling issues submitted by the court's charge were in substance the same as on the first appeal. In its brief, appellant suggests the following variations in the evidence: (1) It was admitted by appellee, W. G. Shivers, that just prior to the accident in question he went into the drug store and saw Mrs. Shivers sitting at the fountain, and that he saw nothing in the situation there that indicated any necessity for him to help his wife down; that he saw nothing there in the whole situation that made him think there was any necessity to help her down and that he figured she could take care of herself. (2) Since the previous trial, it was made to appear that the platform used in the Crosby Cafe is seven inches high and twenty-six inches wide. Appellee's witness Smith admitted that the seats in the jury box in the very room in which the case was being tried, were upon a platform; that the witness himself had to take steps up to a platform to get into the chair from which he testified; likewise the clerk in waiting on the court; and that the judge had to take steps up to the platform to get into the chair at his desk where he sat. (3) In the previous opinion consideration was given by the court to the testimony of Mrs. Skinner that a Mrs. Lay fell from the platform in June, 1934. That testimony was before the court in the previous opinion and was considered on the issue of appellant's negligence in maintaining the platform. This testimony by Mrs. Skinner is not now before the court on the issue of negligence. Appellee's attorneys admitted in the trial that it was not admissible on negligence and it was not tendered as evidence upon the issue of negligence in maintaining the platform; it was offered by them solely upon the issue of proximate cause, on the theory that since someone fell, irrespective of what caused her to fall, appellant could have foreseen that someone else might fall, whatever it might be that caused her to fall. (4) In its opinion on the first appeal, the Supreme Court said that Mrs. Shivers "was evidently worried about the condition of her daughter." On this trial, on that issue, Mrs. Shivers gave the following testimony:

"Q. As a matter of fact, Mrs. Shivers, you were not looking as you rose up to step, you were not paying any attention? A. I do remember; I was just doing naturally, like you would when you raise up out of a chair.

"Q. As a matter of fact, you were worrying about your daughter and not paying any attention to where you were stepping were you? A. No, I wasn't worrying about anything."

As we understand appellant's brief, we have given all the points of difference between the evidence on this trial and on the former appeal. These differences in the evidence do not change the substantive law of the facts, as announced by the Supreme Court, holding that the evidence raised against appellant the issues of negligence brought forward in its opinion, the very issues submitted on this trial, and that Mr. and Mrs. Shivers were not guilty of contributory negligence, as a matter of law. The fact that Mrs. Shivers testified that "she was not worried about anything," as against the Supreme Court's conclusion that she was "worried about the condition of her daughter," does not, as a matter of law, make her guilty of contributory negligence. This fact was mentioned by the Supreme Court, not as controlling the issue of contributory negligence, but as a mere incident of the trial. Appellant has rebriefed its point of instructed verdict with great ability and on careful review of the pertinent authorities. But the doctrine of stare decisis rules this point, and we must hold that appellant was not entitled to an instructed verdict. Frankland v. Cassaday, 62 Tex. 418; Roberts v. Armstrong, Tex.Com.App., 231 S.W. 371.

The doctrine of stare decisis also supports the court's ruling in refusing to set aside the jury's findings: (a) That it was negligence to maintain the platform of the width it was; (b) that it was negligence for appellant to have and maintain the raised platform the height it was; (c) that it was negligence for appellant to have the stool in question situated upon the raised platform, of the width and height it was. On the former appeal the Supreme Court ruled that the evidence raised these issues of negligence against appellant.

The witness J. Kaufhold testified for appellant by deposition. The court received in evidence the testimony of...