Walgreen-Texas Co. v. Shivers, 7670.

Citation154 S.W.2d 625
Decision Date23 July 1941
Docket NumberNo. 7670.,7670.
PartiesWALGREEN-TEXAS CO v. SHIVERS et ux.
CourtSupreme Court of Texas

Orgain, Carroll & Bell and John G. Tucker, all of Beaumont, for plaintiff in error.

Shivers & Keith, of Port Arthur, and C. A. Lord, of Beaumont, for defendants in error.

CRITZ, Justice.

This suit was filed in the District Court of Jefferson County, Texas, by Mr. and Mrs. W. G. Shivers against Walgreen-Texas Company, a private corporation, to recover damages for personal injuries alleged to have been received by Mrs. Shivers as the result of the negligence of the Walgreen-Texas Company. Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Mr. and Mrs. Shivers in the sum of $9,365. This judgment was affirmed by the Court of Civil Appeals at Beaumont. 131 S.W. 2d 650. The Walgreen-Texas Company brings error. We shall hereafter refer to Walgreen-Texas Company as Walgreen.

It appears that at the time Mrs. Shivers was injured Walgreen was conducting a retail store in the city of Beaumont, in Jefferson County, Texas. Such store was a rather large and extensive business. Many articles of merchandise were sold, and many people of all ages and sexes went there to trade. In connection with such business Walgreen maintained a soda fountain, and sold lunches and cold and hot drings of the usual kinds. At one side of the store, and used in connection with the soda fountain, was a counter about 24 feet long. This counter extended along the side of such store. There was a platform 24 inches wide extending the whole length of the above-mentioned counter. This platform was 9¾ inches high, — that is, the floor of the platform was 9¾ inches above the floor of the store. The platform was surfaced with dark-colored square tiles, between which was a band of cement lighter than the tiles, about 1½ inches in width. The general floor of the store was somewhat lighter than the floor of the platform. On the above-described platform were eleven stools, all firmly attached to the floor of the platform. These stools were spaced equidistant from each other. The tops of these stools could be turned around. The tops of these stools were about 32 inches above the floor of the platform to which they were fastened. This would make such tops about 41¾ inches above the general floor of the store. The tops of these stools were about 11½ inches apart,— that is, from edge to edge. At the counter above described Walgreen operated a soda fountain, and sold lunches and hot and cold drinks of various kinds. The public generally were invited to trade at such store and at such counter. In doing so they were clearly invited to use the platform and stools. Patrons desiring to trade at the above-mentioned counter would step up on the raised platform, and seat themselves on the stools fastened thereon. While so seated they would make such purchases as they desired. It is proper to assume that such purchasers were invited to, and did, eat and drink the articles purchased by them while seated on the stools. When a customer desired to leave, it was necessary for him, or her, to either step from the platform to the main floor below, or to alight directly from the stool down to the main floor of the store. It seems that Walgreen had operated the equipment above described for about eight years prior to this accident.

On November 6, 1936, Mrs. Shivers, at that time 66 years of age, who lived outside of the city of Beaumont and outside of Jefferson County, came to Beaumont with her daughter for the purpose of having an operation on the daughter's throat. The doctor who was to perform the operation officed in the building where Walgreen conducted its business. Walgreen's business was on the ground floor. The doctor's office was on one of the upper floors. On the morning Mrs. Shivers was injured she went into Walgreen's store and was served at the counter above described. We assume she was served while seated on one of the stools. In the afternoon of the same day Mrs. Shivers again went into Walgreen's store, seated herself on one of the stools above described, and was served a cup of coffee. When she attempted to leave the counter after arising from such stool she fell to the main floor, and was very severely injured. Her left leg was broken, and as a result thereof she was confined in a hospital for several months.

In regard to just how the accident occurred, Mrs. Shivers testified that she and her daughter went into this drug store that day in the forenoon; that on such occasion she sat down on one of the stools and got something to drink; that in the afternoon she again went into the store and bought a bottle of Listerine; that she then again sat down on one of the stools, and at her request was served a cup of coffee, which she drank while so seated; and that after drinking the cup of coffee she got up off the stool, and in some way she fell to the floor and was injured. At this point we deem it advisable to reproduce Mrs. Shivers' testimony in "Q. and A." form.

"Q. Do you remember how you sat down, whether you stepped up on the platform first or backed up to it and turned around, or how you did it? A. I just remember sitting down.

"Q. Well, when you went to leave there were you trying to step to the floor or were you trying to make a step on the platform and then to the floor? A. Well, I just reached and picked up my purse and my Listerine and turned and stepped away and was tripped.

"Q. What I am getting at, is whether you were trying to make a step on the platform, or whether you were trying to make a step right to the floor? A. I don't remember anything about a platform. I just remember stepping.

"Q. You don't remember where you were trying to step? A. No, I just remember stepping and being tripped, falling.

"Q. Were you looking down at the step when you left it? A. I couldn't say.

"Q. You don't know whether you were looking down then or not? A. No, I don't know which way. I just stepped in the usual way. * * * I just felt like I was in a safe place and just stepped like any one else would."

Boiled down, we think Mrs. Shivers' testimony when considered with attending circumstances, amounts to a statement that at the time she was injured she did not think about being upon a raised platform; that she stepped in the usual way that a person would step who was on a level floor; that the floor she intended to step to, or on, was 9¾ inches lower than she expected to step, and that as a result of such condition she was caused to fall and be injured. To say the least, Mrs. Shivers' testimony, taken as a whole, certainly justified the jury in drawing the conclusion just stated.

We shall not attempt a detailed statement of the pleadings of either party. It is enough to say that the pleadings of both parties were sufficient to raise the issues that were submitted to the jury, and also to raise the questions of law that we shall discuss.

In answer to special issues submitted by the trial court, the jury found:

(1) That Walgreen was negligent in maintaining in its store the raised platform of the width it was.

(2) That Walgreen was guilty of negligence in maintaining in its store the raised platform of the height it was.

(3) That Walgreen was guilty of negligence in maintaining in its store the platform in question of the width it was and the height it was in connection with the counter in question.

(4) That each of the above-found acts of negligence was the proximate cause of Mrs. Shivers' injuries.

(5) That Mr. and Mrs. Shivers were damaged in the sum of $9,365.

(6) That the accident in question was not an unavoidable accident.

(7) That Mrs. Shivers on the occasion in question here failed to observe the location and size of the platform above described, but that such failure was not negligence on her part, and was not the proximate cause of her injuries.

(8) That Mrs. Shivers did not fail to exercise ordinary care to observe the step from this platform to the floor as she left such platform.

(9) That Mr. Shivers did not fail to exercise ordinary care and assist his wife in leaving this platform.

By proper assignments Walgreen contends that this judgment against it cannot stand, for two reasons, (a) because there is no evidence contained in this record showing that it was guilty of any negligence in maintaining in its store the raised platform and equipment above described, and (b) because the evidence contained in this record shows conclusively that Mrs. Shivers' injuries were the result of her own negligence. We will dispose of these contentions in the order mentioned.

It is the settled law of this State, as well as the law generally, that where one person invites another person to enter or use his premises, he must use ordinary care to keep such premises in a reasonably safe condition, so that the person invited will not be injured. If an invitee is injured by reason of the negligence of the owner, while on the premises to which he has been invited, such owner is liable to such invitee in damages. Kallum v. Wheeler, 129 Tex. 74, 101 S.W.2d 225; Carlisle v. J. Weingarten, Inc., Tex.Sup., 152 S. W.2d 1073.

Under the above rule, we think it can be said, as a matter of law, that as regards this store, Walgreen invited the public generally to enter therein, and to use the platform, stools, and counter above described. When we say that Walgreen invited the public generally, we mean that it invited the young and the old, and the strong and the weak. In inviting all classes, it was Walgreen's duty to use ordinary care not to injure any of them. It is conclusively shown that in this instance Mrs....

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