Appeal from District Court, Jefferson County; R. L. Murray, Judge.
Action for damages for injuries suffered from fall in drug store by W. G. Shivers and wife against the Walgreen Texas Company. From a judgment for the plaintiffs, the defendant appeals.
Affirmed.
Orgain, Carroll & Bell and John G. Tucker, all of Beaumont, for appellant.
C. A. Lord, of Beaumont, and Shivers & Keith, of Pt. Arthur, for appellees.
O'QUINN, Justice.
Appellees, W. G. Shivers and his wife, Mrs. W. G. Shivers, brought this suit against appellant, Walgreen Texas Company, to recover damages suffered by Mrs. W. G. Shivers, occasioned by her falling in endeavoring to vacate a stool at the service counter of appellant's drug store in the city of Beaumont.
For cause of action, among other things, appellees alleged:
"Plaintiffs allege that among other appliances in the said place of business, and owned and used in connection therewith by defendant, was a counter about 30 feet long where cold drinks, coffee, lunches and other refreshments were served by defendant to the public, which counter was built upon the floor of said building, and was constructed of tile and metals and similar materials, and extended upward from the floor at right angles and to a height suitable for use for the purposes aforesaid; that the main floor of the said room was of concrete and stone composition, or of other very hard material; that as forming a part of the said counter and of the appliances
used in connection therewith, there was a narrow platform about 24 inches wide extending along in front and at the side of the said counter; that the said platform was about 10 inches high, and was constructed of tile and the surface thereof was very smooth, as was also the surface of the main floor; that as forming a part of the said platform there were stools securely fastened to and built into the said platform, which were for use of persons and patrons being served at the said counter; that said stools were placed about 12 inches apart—that is to say, the tops of the same were about such distance apart; that the said platform extended upward from the floor proper as above stated and at right angles thereto a distance of about 10 inches, and the front portion of the said counter extended upward from the said platform at right angles, and the said platform on which the said stools were located had a level and very smooth surface from the outer edge thereof back to the front portion of the said counter as aforesaid; that the said platform, counter and appliances had been so placed upon the floor of said leased premises by defendant, or by some former tenant from whom defendant had acquired the same, so that the same were not owned by or under the control of the owner of the building but were owned by and under the control of the defendant.
"Plaintiffs allege that the said platform and stools are so constructed and arranged in the respects aforesaid as that if any adult person seated at the said counter on one of the said stools turns in a natural and usual manner in arising from and leaving one of said stools, the said platform is too narrow to accommodate the feet, and so that the said elevated platform and its edge is a stumbling block and trap to the feet of such person rising and turning away from the said counter in the act of leaving the same, and so that the said platform is unsafe and causes an unsafe condition in said floor, and is calculated to trip such person so using the same over its edge or rim, which is at right angles formed by the top surface and side of the said platform as aforesaid.
"Plaintiffs allege that on the 6th day of November, 1936, the plaintiff Mrs. W. G. Shivers became a customer and patron of the place of business aforesaid and for the purpose of being served at the said counter she occupied one of the said stools, and after being served as desired she proceeded to leave the said counter; that in doing so she turned on the said stool, arising from the said stool and stepping away from the said counter in a natural manner and way; that on account of the location and position of the said platform as aforesaid, and on account of the said platform being above the other portion of the floor in the said store, and on account of the narrowness of the same, and on account of the said stools being situated upon the said raised platform rather than on the main floor or floor proper in the said store, she was caused to fall and be thrown down and she did fall heavily upon the floor, thereby sustaining the injuries hereinafter set forth.
"That on account of the conditions aforesaid the foot of the plaintiff Mrs. W. G. Shivers encountered the edge of the said raised platform in such manner and way as to cause her foot to protrude and extend over the said edge and to cause her to lose her bodily balance.
"Plaintiffs allege that the fall of the plaintiff Mrs. W. G. Shivers as aforesaid, and her injuries and damages resulting, were the direct and proximate result of the conditions and defects in the construction and maintenance of the said narrow platform above the main floor as aforesaid, and the having and maintaining of the said stools upon the said narrow platform in connection with the said counter as aforesaid, and the plaintiffs allege that the said appliances and appurtenances were in their nature and construction dangerous for use in the respects aforesaid, and especially for use by persons of the age of the plaintiff Mrs. W. G. Shivers; and the plaintiffs allege that the nature, type and condition of the said appliances and appurtenances so used at and in connection with the said counter by defendant were unusual and different from those ordinarily used in such connections in such places in such premises, and that the said stools so maintained and used by the defendant in connection with the said counter as aforesaid were in the manner used unusual and different from those ordinarily used in such connection and in such places, in that such stools in general are placed upon the main floor or floor proper and are not placed upon a raised platform at such counters.
"Plaintiffs allege that there was negligence on the part of the defendant in maintaining and using the appliances
aforesaid in the conditions and under the circumstances aforesaid, in the following respects:
"It was negligence for the defendant to have, maintain and use the said raised platform in connection with the said counter as aforesaid; and in this connection the plaintiffs allege that said platform so raised above the main floor was a stumbling block and trap to persons leaving the said stools and turning away from the said counter, and that under the conditions and circumstances aforesaid the same was unsafe for the use of such persons as the plaintiff Mrs. W. G. Shivers.
"That the platform was too narrow and was not of sufficient width to reasonably accommodate the foot of an adult person arising from one of the said stools and stepping away from the said counter in a natural manner and way, and there was negligence in having and maintaining such a narrow platform in front of the said counter.
"That it was negligence for the defendant to have, maintain and use the said stools in connection with the said counter upon the said elevated platform under the circumstances and conditions aforesaid, and the said stools should have been placed and located upon the main floor or floor proper, and it was negligence on the part of the defendant to not so have and locate the same.
"Plaintiffs allege that the plaintiff Mrs. W. G. Shivers was not acquainted with the said appliances and conditions and was not aware of the dangers aforesaid; that all of said conditions and the dangers therein were well known to the defendant and should have been known to it by the exercise of ordinary care, and the acts of negligence aforesaid directly and proximately caused the plaintiff Mrs. W. G. Shivers to fall as aforesaid, and the same were the direct and proximate cause of the injuries and damages herein alleged."
Appellant answered by general demurrer, various special exceptions, general denial, and specially that the platform and stools had been in use for many years and had proven satisfactory, and that there was nothing in such prior use putting the appellant on notice of any defects therein and that appellant could not have reasonably foreseen or anticipated any such injuries as were alleged by appellees; that the platform and stools complained of were open and obvious to appellee Mrs. W. G. Shivers; that she assumed the risk in using them; that she had used the said platform and stools at a time prior to receiving her injuries and had full knowledge as to same; and that she was guilty of contributory negligence in failing to properly observe such platform and stools and in the manner of such use.
The trial was to a jury upon special issues which were answered in favor of appellees, and judgment rendered in their favor in the sum of $9,365.
Appellant's first two assignments assert that the court erred in refusing appellant's request for an instructed verdict. The facts are practically without dispute. Appellant was operating a drugstore and place for serving cold drinks, coffee, lunches and other refreshments. The place was located in the Goodhue building on Pearl and Crockett streets in Beaumont, Texas. The fixtures consisted of a lunch and drink counter 24 feet long extending along the wall of the building next to Crockett street. There was a platform 24 inches wide along the entire length of the counter. This platform was 9¾ inches high arising from the floor. The platform was constructed of dark colored squares of tile between which was a wide band of white colored cement of about one-half inch in width. The...
