Wesson v. Gillespie

• Decision Date: 07 October 1964
• Docket Number: No. A-9855,A-9855
• Citation: 382 S.W.2d 921
• Parties: William B. WESSON, Petitioner, v. Dorothy GILLESPIE, Respondent.
• Court: Texas Supreme Court

Page 921

382 S.W.2d 921

William B. WESSON, Petitioner, v. Dorothy GILLESPIE, Respondent.

No. A-9855.

Supreme Court of Texas.

Oct. 7, 1964.

Rehearing Denied Nov. 4, 1964.

Ewing Clagett, Fillmore, Schaeffer & Fillmore, Wichita Falls, for petitioner.

Mock, Banner & McIntosh, Wichita Falls, for respondent.

GREENHILL, Justice.

This is a slip and fall case. The plaintiff, Mrs. Dorothy Gillespie, tripped over a threshold at night going out of the dimly lighted 8-Ball Lounge in Wichita Falls. She was a regular customer and had been in and out of its door and over the threshold at least 500 times. Trial was a jury which found that the defendant negligently maintained the threshold and that this was a proximate cause of plaintiff's injury; that defendant did not fail to properly light the threshold; that defendant failed to provide a handrail, but that this was not a proximate cause; and that plaintiff did not fail to keep a proper lookout. The trial court disregarded the jury's answers to those issues which (1) found that defendant negligently maintained the threshold and that this was a proximate cause, and (2) which found that plaintiff kept a proper lookout. That court found that there was no evidence to support the jury's answers to these issues. Judgment was entered for the defendant. The Court of Civil Appeals at Fort Worth reversed. It rendered judgment for the plaintiff for the $2,900 which were found by the jury to have been the damages suffered by the plaintiff. 370 S.W.2d 918.

Since this is a 'no evidence' case and one in which it is asserted that plaintiff should be charged with knowledge of the conditions, the danger, and appreciation of the danger, the evidence must be rather fully developed.

We shall first discuss the evidence regarding the threshold itself. The jury found that it was maintained in a negligent condition. The trial court disregarded the finding as having no support in the evidence.

The 8-Ball Lounge, a beer tavern, had been operated by the defendant Wesson for about 11 or 12 years. It had been built in 1950, and no changes had been made in its one entrance. The front steps and the concrete threshold were just as they had always been. There was no evidence that there had been any change in the lighting. There were two steps up to the door which closed against the threshold. The entrance is level except for the threshold. There is a concrete strip at the door. It is level on both sides but rises gradually or is beveled to a small point in the center.

The defendant operator testified that the threshold was 3 1/2 to 4 wide and extended across the entrance. Plaintiff's witness Denver Sharp, companion of the plaintiff who was in the lounge with her, agreed with that estimate. He considered this to be narrower than other thresholds by 1/2 to 1 . He did not purport to be an expert witness. Pictures in evidence show the entire concrete strip, with a tape measure laid across it, was about 8 wide. The portion which slants up from the inside floor to a point and then levels out is shown to be approximately 4 wide. The defendant testified that it is 3/4 thick (or high) and beveled on each edge. Sharp said it was 1 to 1 1/2 high. He regarded this as too high and said it did not slope as much as what he considered to be the usual threshold. The pictures in evidence with yardsticks placed alongside the threshold show it to be between 3/4 and 1 in elevation. They also show that the concrete strip, including the threshold, is so situated that a person leaving the tavern would ordinarily step on it before stepping down to the outside step. The floor inside the threshold is level and covered with asphalt tile. There is no inside step up or down into the tavern. The only uneven place is the threshold itself.

The defendant testified that in the years he had operated the 8-Ball, no one (to his knowledge) had ever tripped over the threshold before. Between 80 and 100 people came in the 8-Ball every day. He had never heard of anyone tripping or falling, and no such accident had ever been reported to him.

The plaintiff's witness Denver Sharp, who had been with Dorothy Gillespie in the 8-Ball the night she was injured, testified that the threshold was just a rise or hump in the floor; that the hump in the threshold was too high. But there was no evidence that he had ever tripped over it, and he usually went to the 8-Ball every night.

Essie Johnson had been a waitress at the 8-Ball some six months when the plaintiff fell. She had never heard of anyone tripping over the doorway, going in or out. She had repeatedly used the door and had never stumbled.

A former employee, Joyce Crane, said that she had seen six or seven customers trip over the threshold and that she had tripped on it once herself. But there was no evidence that she had reported any of these instances to the defendant Wesson.

The plaintiff Dorothy Gillespie had been in and out of the door two to five times a week for four or five years, and she had never stumbled or tripped over the threshold before.

George Davis, the city building inspector, had been asked to inspect the 8-Ball. He did so and did not see anything about the door that should be changed or corrected. He did not see anything wrong with it. As far as he knew, the threshold was all right, and there was not a thing wrong with it. The purpose of the threshold was to keep water (rain) out of the building; and his opinion was that the threshold sloped up gradually. On cross-examination, he conceded that as a building inspector, he was mainly concerned with the general structure and safety of the building. He was concerned with the steps but did not pay too much attention to the threshold. He also conceded that an impediment 3/4 high at the entrance to a dark doorway would pose a hazard for people.

We regard the above evidence as being very slight evidence, if any, of negligence in the maintenance of the threshold. The defendant testified it had been repeatedly used for 11 or 12 years without a slip or fall. The plaintiff had safely used it over 500 times. As an ordinary proposition (assuming proper lighting) the building inspector found no fault with it. The waitress who knew of six or seven people, including herself, who had tripped over it did not testify that she notified the defendant of the incidents.

Nevertheless, we shall assume that there was some evidence to support the jury's finding and ture to the question of whether the plaintiff was charged with knowledge of the condition, the danger, and appreciation of the danger. The legal problems in this connection are discussed at length in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 369 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); and Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); and they will not be repeated here except as particularly applicable.

The physical facts as to the threshold have been set out above, but the question of the lighting needs to be developed before discussing the 'no duty' cases set out in the Halepeska opinion. It is assumed that the condition of the threshold would have been open and obvious to Mrs. Gillespie after 500 exposures to it if she had repeatedly crossed it in the daylight, and that she would be charged in law with knowledge and appreciation of the danger. Marshall v. San Jacinto Building, Inc., 67 S.W.2d 372 (Tex.Civ.App.1933, writ refused); Hausman Packing Co. v. Badwey, 147 S.W.2d 856 (Tex.Civ.App.1941, writ refused). Her testimony was that she got off work about 8:30 p. m. and frequently went to the 8-Ball for the evening. There is no testimony that she never went to the 8-Ball in the daytime, nor is there testimony that she did.

There was little illumination inside the 8-Ball. The tavern was 20 feet by 30 feet in size. The central light was an illuminated Schlitz beer advertisement, which a waitress described as 'big and round like a globe.' The globe had a clear glass bottom, and it gave off some light. There was a rather dim blue neon sign over the bar, some 30 feet from the front door, and an electric clock surrounded a neon light. There was light from the 'juke boxes' bright enough to see the records and the lists of records to choose from. There were lights in the cigarette-vending machines. Each booth had an individual phonograph record-selecting device, and each such device had a small light in it.

The plaintiff's witness Denver Sharp testified that it was relatively dark inside; that it was not brightly lighted. The plaintiff's witness Joyce Crane, a former 8-Ball waitress, said it was very dark in the 8-Ball. The defendant Wesson admitted that it was a little shady inside, but 'you could see just as well as you need to.' The plaintiff Dorothy Gillespie testified that you could not read inside the 8-Ball unless you put the reading material up against one of the juke boxes. She conceded that nobody went to the 8-Ball to read.

Outside of the 8-Ball there were many lights. Directly over the door and some 18 above it was an open white 60-watt bulb which was burning. It stood out from the building 'quite a way.' There is a dispute in the testimony as to whether the light from that light bulb illuminated the threshold beneath it when the door was opened. The defendant said it did. The plaintiff did not remember the outside light: 'I didn't pay much attention to it.' Plaintiff's witness Denver Sharp at first testified that the light did not shine on the threshold, but on cross-examination he said he couldn't say; that he just did not notice closely. The next night after the accident, he had gone back to the 8-Ball and had looked at the threshold. He had that night gotten, from observation, the approximate dimensions of the threshold. It was brought out on cross-examination that he was some six feet tall and had been able to see the threshold at night (with that light) well enough to get the approximate...