*1 Petitioners, al., et C. E. COFFEE
v. et
F. W. WOOLWORTH COMPANY
al., Respondents. B-5603.
No. of Texas.
Supreme Court
March 1976. 5, 1976. May Denied Corpus Christi,
Francis I. for Gandy, peti- tioners. Burnett,
Dyer, Redford, Wray & Wоol- Latham, sey, Christi, B. Corpus Mills for respondents.
POPE, Justice. Mrs. Floy Coffee obtained favorable an- special swers to issues her action for injuries which she personal sustained in a fall inside the owned by defendants F. Company Woolworth De- W. and Woolco partment will Stores. referred as Woolco. The trial court granted motion defendants’ veredicto the court of сivil judgment. affirmed points error and in this court plaintiff produced more than a supports each of scintilla jury findings. the essential In our there was some evidence which findings. judg- each of the We reverse the ments of the courts below and render verdict Cof- fee recover the sum of *2 believing inches above the floor and it approximately at was December On the dеfend- entered an aisle. a. m. the 10:30 As shopping. purpose the of ant’s store for The court civil its at- of focused merchandise many type the stores of in finding that tention the second the long parallel rows down in arranged was knew or should have known defendants of and shop. walk could which customers the empty platform, the the condition about directly on plaсed was The merchandise holding: “The record void of evi- floor, placed low rec- it was on instead the that appellees actually dence [defendants] platforms, “gondolas” or tangular that ‘gondola’ knew the was empty. There plat- The to them. have referred parties a of is also total absence evidence regarding and were square fivе feet were about forms ‘gondola’ time emptied the when the was or a of about six off floor to raised the long empty how it had been before Mrs. legs at corner. The by each inches narrow it.” tripped Coffee over long in side-by-side plaeed were platforms In there was some evi- was then stacked and the merchandise rows finding. per- dence which the levеl. There top eye of them to about supervisor sonnel of defendant’s store testi- rows the of parallel were aisles between that possible fied there were two ex- intermit- those aisles were and merchandise planations why platform would as be right which ran at tently by broken aisles personnel empty. Either store were in the walking an aisle be- down angles. While process changing a of display merchan- merchandise, Mrs. Cof- two tween rows particular dise or merchandise on that right down one attempted to turn
fee sold out and had not platform had been aisles, tripped she right-angle when of the restocked. If the store personnel were was at the which platform the last over changing display, then it is obvious that and the row merchandise intersection of defendants, through employees, their parties undisputed by the aisle. It empty had actual notice empty. platform was that this last explanation why ous condition. This (1) that jury found the defendant empty somewhat more by leaving dangerous condition created other probable than the since and location the condition platfоrm in it was the store’s left; (2) the defendant knew policy, display where “to it merchan- try [the known of the possible or should have as so as it will look full as dise] condition; negligent (3) the defendant was whеre . we’d like to have it to it’s Mrs. of the dan- failing or, warn in know level.” The eye shoulder level it; failing to remove platform condition or gerous ordinarily permit did proximate was the negligenсe by such become virtue of customer empty the defend- Upon they cause of the considered it bad buying, because trial court rendered motion the could have salesmanshiр. ant’s Thus platform veredicto. reasonably was inferred chang- personnel were empty because store there was some evi We hold that ing displays defendants had finding. supportеd the first dence actual notice. picture the record There support evidence to it, which shows was also platform or one like empty finding should have was top if platfоrm even it empty the white tile known about almost empty buying. of customer close to the was because An so empty held could On this issue the easily the floor and blended into could not estаblish could an aisle. confused for should have known the aisle the defendant walking down well infer that produced empty platform unless she intersecting aisle without would turn at long was how six evidence as to knowing there instantly by the fortuitous act over it. There not created tripped before she which hold that where rather the com- customer but are numerous of a substance is on many an obstacle retail customers purchases bined person, the acts of some floor because of occurring over some extended which were responsiblе, is not whom the period of time. *3 necessary proof of actual notice or
proof
argues
also
defendant
length
the condition existed for such
veredicto was cor
judgment non obstante
give the
reason
proprietor
time as would
open
this
rect because
opportunity to discover the condition.
able
law
as a matter of
and obvious and
Grocery Company,
v. Biel
Soto
dangerous condi
did nоt create a
1971,
(Tex.Civ.App. Corpus
no
89
Christi
—
question recently held that the
tion. We
Hill’s, Inc.,
writ); Todd v.
383
250
S.W.2d
open
defect
premises
or not a
whether
1964,
(Tex.Civ.App.
Worth
writ ref’d
— Fort
the court to decidе as a
is for
and obvious
McCaslin,
e.); Furr’s,
Inc. v.
335
n. r.
Corporation v.
Adam Dante
matter of law.
1960,
Paso
no
(Tex.Civ.App.
284
S.W.2d
— El
(Tex.1972). There
452
Sharpe, 483 S.W.2d
writ); Annot.,
Injury,
Obstacle on Floor —
as to how much
in the record
dispute
(1958).
110
7
61 A.L.R.2d
These
§
with
contrasted
the color of the
usually
drops
arise when a customer
some
Mrs. Coffee and a
the color of the floor.
proprietor’s
food item on the
floоr. Fon
upon the accident
neighbor
happened
who
Co.,
tenot v.
Roebuck
399
394
Sears
S.W.2d
that the color of
both testified
1966,
(Tex.Civ.App.
writ ref’d
— Beaumont
the floor. Given
in with that of
blended
e.)
Hill’s, Inc.,
peel];
r.n.
Todd v.
[banana
along
with the
testimony
[lettuce];
Inc.,
supra
Weingarten,
O’Neal v.
say
we cannot
platform,
location
(Tex.Civ.App.
Courts have been reluctant lia- impose reversed and below are bility storekeeper showing on a without a courts in the sum of rendered for the foreign substance was on the floor length unjust for some of time because it is proprietor
to hold the liable for the care- pеrson lessness of some over whom he has ON REHEARING control, op- unless he no had reasonable inaccurately says Woolco portunity to discover condi- gondola and the floоr were states that rule developed tion. Thus the color, when in truth the floor of the same produce must some evidence that varying shades of dark brown was tan foreign substance had been on the floor extending along the stripe with a wide length give pro- a sufficient of time to Certainly par- distinguish the two. Annot. 61 110 prietor notice. See A.L.R.2d a correct factual state- tiеs are entitled to cases cited therein. While it 7 § ment. it is foreseeable to a may argued answered the issues Since substances contrary to Woolco’s inferences and ver drоpped his floor accidentally will be evidence, and since the trial sions of customers, go- are the fact that customers judgment notwithstanding court rendered certainly much merchаndise is ing buy findings, duty it is our to view the those and controllable —indeed more foreseeable favorably plaintiff. most to the purpose of consequence and the an intended Estate, ,In Furthеrmore, King’s re 150 Tex. 244 doing business. (1952). ous condition pho- saying You are that this is the introduced a The defendant over, platform that Mrs. Coffee fell portray empty gondola tograph of an you? are it existed on situation to the statement Attached No, Sir. copy a xerox appears to be is what facts saying are not that this is And is the This original photograph. an where Mrs. the area of floor record, in this photograph evidence of fell? that the floor it shows No, Sir. gon- shows that the photo same color. have jury very well could concluded stripe a rather wide dark astride dola is posed photo. was a testi- the floor. Plaintiff along which runs rehearing is overruled. The motion for stripe recall such a she did not fied that *4 gondola day running out from counsel tried When Woolco’s
the accident. cross-exami- his contention
to establish witnesses, the plaintiffs of one of
nation sup- afforded direct answers
witness findings and the facts ex-
ported opinion. That evi- in this court’s pressed parte WERBLUD. Ex Maurice dence was: Well, now, today about Q. No. B-5639. gondola— the color Court of Tеxas. Supreme Yes,
A. sir. April with the floor. Q. —and that it blended noticed the As Corrected on Denial of you must have Obviously 9, 1976. June gondola at the A. We looked the same just about flooring. color? Wеll, was the floor say so. I would stripes any weren’t off-colored weren’t differ- anything a color?
ent
A. No.
[*] [*] [*] [*] [*] [*] floor the the floor. Is the
Q. How about the time as way it looked at
same the accident?
you recall said, was, like I recall. It I don’t was the same
floor and looking at it. as far as
coloring also assumes to believe
compelled at the gondola located
portrayed plaintiff fell. it was when place
same at the time for Woolco photo- testified about accident
graph: