Wilson v. Werry

• Decision Date: 29 April 1911
• Citation: 137 S.W. 390
• Court: Texas Court of Appeals
• Parties: WILSON v. WERRY.<SMALL><SUP>†</SUP></SMALL>

137 S.W. 390

WILSON v. WERRY.^†

Court of Civil Appeals of Texas. Dallas.

April 29, 1911.

Rehearing Denied May 13, 1911.

Error from District Court, Dallas County; Kenneth Foree, Judge.

Action by Adolph Werry against J. B. Wilson. There was a judgment for plaintiff, and defendant brings error. Reversed and rendered.

Harry P. Lawther, for plaintiff in error. Etheridge & McCormick, for defendant in error.

TALBOT, J.

This is an action to recover damages for personal injuries. The plaintiff in error, who will hereafter be called defendant, owned a large eight-story building in the city of Dallas, known as the Wilson Building, six stories of which were devoted to office rooms rented to persons having business with the public, the elevators, halls, and corridors of which were in the possession of and cleaned by defendant, through Temple, his manager, and a number of negro janitors and porters. The defendant in error, who was the plaintiff in the court below, and who will hereafter be referred to in this opinion as plaintiff, on the 10th day of August, 1908, went to the office of C. D. Hill & Co., architects, on the third floor of said building on business. He entered the building at the Main street entrance; took the elevator; got out at the third floor; walked along the main corridor on the west side of the building to the north transverse corridor; went down that to the office of C. D. Hill & Co.; transacted his business; and was proceeding back the way he came when in the main corridor, about half-way to the elevator, his feet slipped from under him, and he fell to the floor, breaking his arm and seriously injuring one of his legs. On October 17, 1908, he filed suit against plaintiff in error for $10,000 damages on account of the injuries claimed to have been sustained by him in said fall, grounding his action upon the following: (1) An implied invitation on the part of the owner of the building to use the same; (2) that at the time of said accident certain servants of the defendant were engaged with mops, brooms, and other tools and instruments in cleaning the wainscoting and floor of said corridor, by the use of soap and water, at a time when the same was in use for the passage of the inmates of said building and those having business with them; that the floor of said corridor was made of polished marble, exceedingly sleek and smooth, affording an unstable footing for those passing along, when dry, and which when damp or soapy became still more dangerous to foot passengers; (3) that defendant could have removed the sleekness and dampness thereof by covering said floor or dressing it with pumice stone; (4) that defendant was guilty of negligence in constructing the floor of said corridor of such smooth and sleek material without matting or covering, and in failing to remove the glaze or polish with pumice stone, and in permitting the same to become damp and soapy, and in failing to notify plaintiff of the dangerous condition thereof. The defendant answered by a general denial, and specially denying that the floor of the corridor where plaintiff fell was constructed of polished marble, and that at the time of the accident his servants or agents were engaged with mops, etc., in cleaning said floor with soap and water, and alleged that it was the custom of his said servants intrusted with the cleaning of said floor to leave the same clean and dry by 7:30 a. m. each morning, and that on the morning of the accident the floor had been cleaned and washed by 7:30 a. m.; that plaintiff met with his accident between 9 and 10 o'clock a. m., at which time the floor was dry and not wet or damp, and was no more smooth and slippery than a floor of such character usually is; that in the construction of said building the defendant had laid the floors of said corridor in plain unpolished marble, which was a material commonly and customarily used for such purposes in the construction of all first-class, modern office buildings; that, after the completion and occupancy of said building, defendant had employed an experienced and competent janitor whom he placed in charge of the cleaning and keeping in proper and sanitary condition the halls and corridors of said building; that on the date of the accident to the plaintiff the said janitor was in charge, and had under him a competent and efficient set of men; and that in the construction of the floors of said corridors of said building and in his employment of men to keep the same in a cleanly and sanitary condition, and in the manner in which his said servants performed their said duties, he conformed to what was ordinary and customary by owners of buildings of like character, and that the accident to plaintiff was not due to any negligence on his part; that, if at the time of the accident to plaintiff the floor of said corridor was in the dangerous condition alleged by plaintiff and unsafe for him to walk upon, the same was open, apparent, and obvious, and was known to him and understood by him, and he assumed the risk of walking upon the same; that while the floor of said corridor, being laid in unpolished marble, presented a smooth and even surface, yet the same was not more smooth than similarly laid floors in all first-class, up-to-date, and modern office buildings; that it was not ordinary and customary for floors of such character to be covered with matting to prevent persons from slipping and falling; that, if plaintiff slipped and fell upon said floor, it was due to a worn or one-sided heel on his footwear, or was contributed to by the same, or was an accident without the expectation or foreknowledge of defendant and was unanticipated by either defendant or plaintiff. A trial before a jury January 26, 1910, resulted in a verdict and judgment in favor of the plaintiff for $1,650, and the defendant appealed.

The first assignment of error complains of the court's action in refusing to give the defendant's requested charge directing the jury to return a verdict in his favor. The proposition asserted under this assignment is that the evidence was insufficient to sustain a verdict in favor of the plaintiff. That the plaintiff slipped and fell, and was thereby injured, substantially, as alleged, is not questioned. Nor is it denied that the renting of the rooms in the building for the purposes for which they were rented constituted an invitation to those of the public having business with the occupants of said rooms to pass to and fro, in the discharge of that business, along the hallways and corridors. Neither is the well-settled rule of law that, when a person in control of premises invites another into or upon the premises, he owes to such person the duty of using ordinary care to keep the premises in a reasonably safe and suitable condition, so that he will not be unnecessarily or unreasonably exposed to danger. The contention is that the evidence is wholly insufficient to show that plaintiff's fall and injuries were the result of actionable negligence on the part of the defendant or any one of his servants. This contention, we think, should be sustained.

The evidence was insufficient to authorize a recovery upon either of the grounds of negligence alleged. The construction of the floors of the corridors of the building with the character of marble with which the evidence shows they were constructed cannot be held to be a structural defect or of itself the failure on the part of the defendant to exercise that degree of care imposed upon him by law to render the corridors reasonably safe for the use of those who might lawfully have occasion to use them; and, giving the most favorable construction to the evidence and to the legitimate inferences to be drawn therefrom, we think it utterly fails to show that the defendant was guilty of negligence, in that he failed to keep the corridor where plaintiff fell in a reasonably safe condition for use. The floor of the corridor over which plaintiff...