Briones v. Levine's Department Store, Inc.
435 S.W.2d 876
Tex. App.
1968
Check Treatment

*1 vir., Appellants, Luisa et BRIONES INC., STORE, DEPARTMENT

LEVINE’S Appellee. 11634.

No. Appeals Texas.

Court of Civil

Austin.

Dec. 1968.

Rehearing Denied Jan. 1969. *2 Austin, appellants. Lee, Hubert

J. Clark, Thomas, Harris, & Denius Win- Austin, Coates, Bishop, ters, Barry K. John appellee. O’QUINN, Justice. (415 cause appeal of this

In former ref., remanded e.) n. r. we writ S.W.2d material is- the case because aof precluding rendition sues of fact summary judgment. court, and

Upon return to the district jury, the court en- after trial before appel- judgment on the verdict tered below, nothing in her lant, plaintiff take personal injuries sustained when suit for a power lawnmower fell backward over she de- displayed for in an aisle sale store. fendant’s court, trial From thirty points plaintiff appeals assigns of error. merchandise

Appellant made selections backward table from standing. at which she back, the lawn- tripped she stepping In behind her sitting floor mower injured by the fall. jury that the lawnmower found appellant’s concealed from not hidden or racks, clothes, display by hanging view tables, or merchandise.

In previous our consideration this answered issue 11 find that failure case we concluded there a fact issue keep proper negligence. was not lookout on whether the lawnmower was concealed request appellant, At the trial court appellant’s or hidden from view dress found undisputed that the evidence was racks merchandise the aisle from across *3 appellant stepped when back the dis- from display danger might table so that the play tripped lawnmower, table and open not have been and obvious. did not she know the mower was there. We found a further issue on whether After a careful examination the rec negligence the conduct of a saleswoman was ord, we that conclude our under decision proximately causing the accident. In the by facts of this case is controlled Hale summary proceed- judgment record of the peska Interests, Inc., Callihan v. 371 S.W.2d ings appeared passed it that the saleswoman (Tex.1963). appellant display between table and the causing step her hit to back and the mower. The danger, rule is that if the in jury

The that the saleswoman was found lawnmower, open this case the is and ob ap- attempting proceed not between to invitee, and vious is known oc pellant way to display and her table on cupier premises duty of the no owes to warn appellant stepped register the cash when protect. reasoning or The that is tripped. back and duty is things no warn the invitee of already knows, she dangerous con or Appellant assails the of the open ditions that as a mat so and obvious argument trial court with the that it was charged ter of law the invitee will be duty” doctrine, upon flowing based “no appreciation and Hale thereof. jury finding that the lawnmower from peska Interests, Inc., supra; v. Callihan concealed, was hidden but that not or Seale, Harvey (Tex. 362 S.W.2d 310 jury’s find- judgment did not set aside 1962). 6, 4, 5, ings special and answer issues special and 10 and 11. issues Appellee duty appellant, a owed special jury In 4 the answer to issue invitee, as a protect business against appellee that “had lawn mower found a premises conditions of the store that would display amongst on clothes the aisle an safety, involve unreasonable to her risk immediately a and across clothes rack “danger open would not be table, a close display merchandise so person ordinary or a exercising obvious to a display to said table as to constitute Adair, care.” Houston National Bank v. similarly danger to customers situated 146 Tex. (1948). 207 S.W.2d 374 * * * making [appellant] selections display from the table.” jury The found that the lawn hidden, mower was not concealed and or “that jury 5 and 6 the found issues Under that the failure of the saleswoman to warn aisle placing of the lawnmower appellant negligence. was not The fact on a rack amongst the clothes clothes appellant that tripped over a lawnmower table” display immediately across from the in appellee’s injured store was she proximate and a cause negligence fell liability. backward does not establish appellant the fall sustained. showing There must be evidence that way appellee some at fault and special answering issue In injury. the fault keep cause of her fail to appellant “did not found that jury’s appellee finding danger dis- created merchandise proper lookout by article, placing a hardware lawn Levine’s store play on the floor mower, displays of amongst in an- aisle over which lawnmower particularly goods, soft to, clothing, prox- such as in close Although required not she fell.” asserting on this Appellant’s points error alter cannot display table imity to the question law are by the overruled. imposed obligation increase the appel- protect or warn upon appellee to the trial court Appellant contends open and danger if is not only lant photo- into admitting erred evidence four danger the close If the caused obvious. attempting graphs introduced proximity of lawnmower to show the interior Levine’s store obvious, open there was no appellant’s acci- it at the time of existed appellant. warn duty protect or at the Timely objection was made dent. lawn- finding placing jury’s duly preserved point been trial and the has table constituted mower close for our consideration. danger with the find- inconsistent *4 not hidden or ing the lawnmower was that pictures complains that the Appellant es- was no issue to concealed. There years the acci- four after were made some tablish, suggesting, we find no facts and at dent, accurately the scene reflect did not lawnmower, in display sitting that the on accident, vouched and were the time of the obvious, open ei- aisle, and the was not through whom manager, by the store presence in aisle ther of its the because offered, only ex- the the exhibits were amongst a rack its clothes on or because of best of they accurate “to the tent that were proximity display close the table. memory.” [his] * “* * Appellant argues that loca- the objected appellant pictures to which The dress- amongst tion aof lawnmower ladies’ appellee through Levine’s by were offered garments is es and children’s somewhat manager at the manager was also store who incongruous, any danger and created manager, time the The store of accident. or respect its location with to the clothes counsel, appellee’s had request at of the tables or items in that area of the other in the clothing a and rack re-arranged table persons seek- would be store less obvious store, power a lawnmower placed and had any dangerous ing buy garments, and space the table aisle between or very likely not condition created would rack, he the manner remembered and the in be noticeable unless attention of the the acci- at time of the these be the objects to it.” particularly customer was drawn to then professional photographer dent. A were later pictures which a week took four incongruity placing The hard in at the trial. offered evidence in ware articles a the section store other display clothing wise devoted to will not plan up by the man- The set store floor impose duty protect itself or warn pictures purpose taking the ager for the “* * * against if danger thereby created the testified, represented, he * * * presence open the hardware is way it my best of obvious. The found that at the time lawn- The was at the the accident.” time of and on the occasion the lawnmower over pictures was borrowed mower used for appellant fell was concealed or occasion, manager testified but the * “* * hidden appellant’s hanging from view approximately the it was display clothes or other merchandise or mower type.” same and the same size racks tables on the of the or located floor Briggs and Stratton powered was store vicinity in immediate bar, motor, wheels, had a handle four mower. Since the lawnmower no was approximately its same size was base way danger concealed, hidden or whatever tripped appellant as the over which mower presented Ap- it open and obvious. and fell. pellee duty particular at had no to call protect manager tention it or customers The record shows that appellant fell and tripping it. in the store at the time over diagram, persons might was one to the the table who assisted be drawn wide,” immediately her feet after the accident. little and that “the tables racks proportion.” are not as wide as shown manager was an testified open aisle each of the lawnmower side It posed is settled Texas that display which was on floor between pictures are proper admissible when the rack. It table and clothes by testimony foundation is laid that the his distance recollection from objects portrayed are the same similar where lawnmower they represented and that faithfully are appellant before she standing positions. Changes, to their relative even feet. The back fell was four or five changes, necessarily substantial will not ex manager that the cover- testified same floor clude a photograph changes where the are asphalt tile ing, consisting nine-inch explained picture give so that the will n squares,was in use occasion understanding correct ex of the condition taken. accident and when the isting at the time of the accident and will counsel, by appellant’s Under examination practical Texas afford instruction. Em manager placed had stated that he ployers Agan, 252 Ins. Ass’n v. S.W.2d nearly photographer as lawnmower for the Eastland, ref.). (Tex.Civ.App., writ the time of as he could “to simulate appears jurisdictions It some *5 that the pictures accident.” The disclose upon formerly with disfavor courts looked by manager was placed the lawnmower as an at photographs the admission of display of squares the than more four tempted showing reproduction a scene of approxi- table, of apparently a distance according objects position of the movable half feet. mately three and one three to the offering party to the contention the loca- to manager also testified The wit by party’s the picture as recalled pictures the objects of shown tion other majority The (1922) nesses. 27 A.L.R. 913 situated were not so which he stated Texas, is con rule, followed which is Certain clothes the accident. day the of Ass’n v. Employers Ins. trary. Texas the area the lawnmower racks not near 913, 916; A.L. 19 A.L.R. Agan, supra; 27 were not occurred the accident in which R.2d 877. regis- The cash rearranged pictures. for the the time of since the relocated ter had been pictures need the admissible To be table, lawn- the display The accident. photographer verified, by the even not be the opposite mower, clothing rack and the necessary that only It is them. who took the manager for by the placed table were the knowledge of having witness some posi- the approximately “in picture taking are sub pictures testify the facts fall,” the time they in at the tion Branard, 236 stantially Dofner v. correct. said, my mem- the best of manager “To the Antonio, (Tex.Civ.App., San 544 S.W.2d ory.” cited. ref., and cases e.), r. writ n. drawing the store the trial a During pictures that the Appellant contends placed on blackboard plan was

floor portray the location manager accurately testi- do not jury The for the to view. to him, in relation lawnmower, particularly dif- pictures the fied, before with the rack. clothing pic- and the display the table drawing and between ferences to as evidence and the tables There was conflict tures. He testified respect objects with way in the these the same the location of arranged racks were in the evidence “except that A conflict pictures to each other. and in the diagram render does not pictures may accuracy be ex- board tables drawn inadmissible, their correctness since actually they them than a little bit further tended jury. fact for question becomes comparison the entrance are Branard, supra. “according Dofner v. manager said The store.” * “* * testified, then, appellant fact the It was Appellant urges that her, and I back to make room pictures years after were taken four Appellant said fell back.” Con that’s when I accident renders them inadmissible. lawnmower was elapsing the date of she did not know the siderable time between pictures up, and that if the lawnmower taking got until she the accident and the have prevent pictures had been there she would not will not admission of not I which accurately “nothing at the fallen as there was they if show conditions except time of could fall” mower. the incident. McCormick Evidence, Ray, Texas Law of sec. earlier, found, as we observed cited, and cases fn. 47. “attempting to that the was not saleswoman respect posed pictures, proceed the fol- between Mrs. Briones With by display way regis- made McCormick table on her the cash lowing statement is Ray: ter.” “* * * manager if there dis- The store testified that when is substantial feet, pute accuracy por- help appellant he went she as to the the scene trayed but judge “sitting have a discretion was on the lawnmower” should rack, posed near said was picture to exclude unless the clothes which he opposing party opportunity separated by an given an from the machine aisle. prepare picture representing over scene introduced objection support testimony as testified to Mc- his witnesses.” 2 Ray, manager position Cormick of the lawn- Texas Law of Evi- dence, p. 321, rack on sec. 1465. mower relation to the clothes one side of the mower and the Appellant testified she walked on the other side of the machine. table, at she later *6 Appellant pictures, staged offered no fell, standing when she back and otherwise, testimony to the offered rebut Ap- with walking the saleswoman ahead. by appellee appellants’ or to demonstrate pellant described the between the aisle only be- contention there was one aisle “narrow,” table and the clothes rack as so * and that * tween the clothes the table narrow that she “had to draw [her] narrow, the that her aisle so narrow arm in in through order to make it because arm brushed the clothes as she walked hanging” was some clothes of an the table. In the course toward rack, appellant double rack. The clothes interrogation extensive the man- store said, right approached was on her as she ager, following dialogue coun- the between the walking behind the sales- manager sel for and the occurred: woman, and she had to hold her arm so spill clothing.” she “wouldn’t the “Q you willing Counsel: Are for ** * [appellant’s go to out counsel] Appellant contends that aisle the between photographer the time does —what the rack clothes and the table was night? store at close lawnmower, displayed so narrow that the clothes, amongst the not ob- aisle no, tonight “A At six o’clock, at dis- served her and was close to the so eight o’clock. play step “gave table that when she one “Q pictures anything And take he top tripped and fell on backwards” she wants to take? the the machine. testified that after She ticket, making the saleswoman finished out privilege.” “A That’s his appellant’s merchan- selection of following response any table, “was not reveal dise at the the saleswoman The record does At that time appellant. appellant and for coming around” between counsel had objected register. appellant go pictures the table to the cash which to to Appellant’s photographs been substantially admitted correct the are evidence.. overruled, objections, were correctness be- which the court will be admitted and their jury. following language: question stated in the comes a for the Dofner Branard, supra; 9 A.L.R.2d “* * * photo- 1) object I the sec. 3. graphs given for being the witness the be- purpose testifying therefrom manager re The store testified they represent do conditions cause the por question peatedly pictures the happened, at time that the accident the trayed objects in accident scene by the actually but are as testified they they best at of his were latest witness rearrangement manager time accident. attempt it to make store conditions to was at accident im the scene of the purports now as to what he conform mediately appellant after fell and while don’t like I testify what it then. looked sitting she was still lawnmower. accurately it can be stated as think attempted arrange He all testified he then, it represent the store objects pictures approximately object to his testi- I submit and therefore position they were at time into fying it to the introduction from and Any fall to the best his recollection. evidence.” pictures differences between * * * objection 2) “I have more one out ex pointed accident were scene is; providing photograph and that plained when were introduced. rearrangement prepared of a [the *** fact and the manager] store objections pictures go made to it counsel that with the assistance his weight more to than of the evidence leading testimony.” amounts to admissibility. its Admission pictures was a matter court’s trial * ** the intro- object “I 3) discretion, is not shown have grounds photograph on the of this duction points urged been abused. The of error ‘arranged to apparently it as a result of the trial court’s action my be knowledge’ and it would best of admitting questioned pictures are over- repre- prejudicial it an if is not accurate ruled. repre- If it an accurate sentation. accept it.” glad to sentation we would be Although we have not enumerated *7 points

thirty error, have reached we points all dis- overruled essential to The consider trial court has position judgment the case which able to the admission discretion as the trial court is affirmed. is question photographs. On review wisely judge the trial acted whether trial court is part pictures allowing to become things all affirmed. whether question is the evidence. Texas the court abused his discretion. Affirmed. Agan, supra, and Employers Ins. Ass’n v. 743, 748-9.

authorities cited S.W.2d HUGHES, (dissenting). Justice evi The test is whether the satisfactory Depicted accuracy as is four similar dence here one of admitted in pictures accordance with the recollection of the trial court objects objections appellants evidence position witness over portrayed. through opinion whom set out in If the witness Associate Justice they O’Quinn. are offered testified that *8 my opinion It that the trial judge tion of discharge she did not admitting abused his discretion in these this burden because the jury having found photographs They were taken evidence. that the lawnmower was not concealed or years lour They after the were event. hidden hanging from her by view upon testimony Lapinsky, clothes, based merchandise, Mr. racks or store manager appellee, they cor- tables the and its attendant lawnmower rectly represented the scene at the time dangers open were and obvious. The you Mrs. Briones fell “as best can remem- also found that this lawnmower was so they ber day,” (Mr. placed as he were “amongst on a clothes the clothes Lapinsky) trying say was “not this is rack” so close to Mrs. the table where exactly day,” it like was that he was asked Briones was purchases her as to selecting “put it (the as as lawnmower) well danger constitute a her. There is no you could, day,” about it where was that contention that conflict. findings these that he located the fixtures to “best My problem is to determine whether the my memory,” plan that the floor finding that the con- lawnmower was not arranged as of the time Mrs. Briones fell cealed or hidden from the view of Mrs. “to the my knowledge” best of or “as well requires Briones us to hold that the lawn- you as can you recollect” or can recall.” “as open mower and dangers its attendant were appellee states,

In photo- its brief My “The obvious to is that her. conclusion graphs purpose for the it introduced does not. showing open prominent loca- Supreme Court held that a has lawnmower, tion of the ap- in rebuttal to plaintiff-invitee cannot if he knows recover pellants’ allegations that it was concealed condition, danger, ap- realizes the among hanging clothes.” preciates danger, charged or is law protection litigants by afforded with ap- such knowledge, realization and

oaths taken very preciation. witnesses is worth Gillespie, Wesson v. Tex. 382 little if such highly prejudi- material and S.W.2d 921 (1964). cial photographs evidence as these is admit- Since did Mrs. Briones the lawn- see

ted on the basis their verification as mower, she ap- could not have realized and attempted by Lapinsky. Mr. preciated danger attending it. She

I do not consider must charged, law, the offer made be as a matter progress trial Mrs. Briones’ coun- that the lawnmower where go sel to it p. store before was and a appreciation its 8 m. clos- realization ing and take It of the danger fair offer. connected with it. was made at an unseemly time. did not It The location of the lawnmower when permission include arrange the store is, Mrs. Briones fell backward over it it was when injured. Mrs. Briones my opinion, legal determinative of this If I am question. correct in concluding ap- picture it If was where herein pellants were been, entitled to based it shows to have no I would have jury, verdict of the then the above difficulty Briones, in charging Mrs. error, it, as I becomes law, see matter of ingredients with all immaterial. duty.” “no Supreme See remarks of As opinion reflected of Associate Risk, Court Greenhill in Assumed Justice O’Quinn this ques- case involves the Justice Baylor Review, XVI, Law Ill p. @ Vol. tion of appellant whether has shown that Journal, Southwestern Law Vol. appellee was duty protect under a p. 1 @ 13. *9 from injury which she received when stepped she back from the merchandise We findings have here while the counter and fell aon lawnmower and that lawnmower was not hidden or concealed this duty was breached. It Briones, is the conten- from the of view Mrs. it was center, exact- as in a but not row close and so located “amongst” the clothes side ly in the center the aisle. On one shopped. of as she to her dangerous be there large stacked boxes row of circumstances, hold, under these I would to be space left for the cart enough was existed dangerous condition since this pushed the other side through. On proxi- a injured as was and Mrs. Briones space person a walk enough was she, a matter it that as mate result of space enough push not through, but realization law, charged not be with should in the large through. cart boxes dangers incident appreciation higher. high row were stacked waist or dangerous situation. such Price saw them. But close to Mrs. box, large end of the row boxes small Markets, Rackley 417 S.W. In v. Model eight high, lying or ten inches was on the (1967) Tex.Civ.App., Antonio 2d San small itself. She did not see this floor summary e., r. n. Court reversed stopped at a counter to box. She where judgment for defendant store up picnic supplies. pick some She pair of shoes customer fell over past the side of the aisle narrow saying. aisle the Court stepped large row stacked boxes. She upon “It cannot be said that the shoes counter, not know- back from the open the floor were and obvious so space ing that the small was in the box charged, as a matter Rackley Mrs. tripped fell back- back of her. She law, appreciation box, sustaining seri- ward over the small appellee judg thereof so as entitle injuries. ous duty’ Scott ment under the ‘no doctrine. Liebman, 288, (Tex.Sup. 404 S.W.2d says Mrs. Price that she did not see Interests, Halepeska 1966); v. Callihan small box it was hidden from because Inc., In (Tex.Sup.1963). 371 S.W.2d 368 larger, the stack of taller boxes. view testimony, any her she actual denied came side She down narrow her prior fall. knowledge of same aisle, boxes, large saw the stack of but Furthermore, did she testified she beyond the small short box them she did because not see shoes on floor not sight see because it was out of she upon in the racks at attention was those picnic approached supply counter. eye before us level. Under the record looking at the She was not floor. She holding, a matter there is no basis for at the merchandise. At the looking law, Rackley have that Mrs. should up picked time of the accident she had anticipated that be on shoes would paper plates picnic from the coun- some floor in tthe aisle.” carrying ter and in her arms. them around, turning back before She hidden concealed These shoes were not intending go candy counter customer, yet they open were not from had other side of the She aisle. and obvious as a matter of law. par- been down that aisle before on this Paraphrase Judge Bar- language day.” ticular Markets, supra, and substitute row Model analogy “lawnmower” for “shoes” and says Mrs. Price the box over While perfect. is near tripped which she was hidden view apparent it is that she could have seen had Stores, Minyard’s Inc., In Price v. Food This, however, she looked. justify did not 51, Tex.Civ.App.Dallas (1968) 424 S.W.2d a summary judgment against her. h., summary n. w. the Court reversed a stores, judgment saying: for the my opinion It is that the trial erred court “The accident occurred in a aisle. wide rendering large A number of boxes were stacked jury. verdict of the I would reverse *10 appellants on the ver- render alternative, jury; I would

dict of the case.

reverse and remand this

I,respectfully, dissent. Faye al., Appellants,

Alice et DUNN al., Appellees.

R. et STEPHENS M.

No. 17178. Appeals Texas. of Civil

Court

Dallas.

Dec. 1968.

Rehearing 1969. Denied Jan.