This is an appeal from a take nothing judgment, rendered non obstante veredicto, in a slip and fall case.
*515 Winnie Franklin sued Safeway Stores, Inc., alleging that while shopping at a Safeway Store located in Dallas on November 3, 1971 she slipped and fell on a “nut shell and/or syrupy substance” thereby causing her to sustain personal injuries. She alleged numerous acts of negligence on the part of the defendant which she charged were proximate causes of the occurrence which resulted in her injuries. She also pled that since the materials causing her injuries were under the management and control of Safeway that such defendant was liablе under the doctrine of res ipsa loquitur.
The case was tried before the court and a jury. In response to special issues submitted by the court the jury found (1) that at the time and on the occasion in question there was a syrupy substance located on the floor of defendant’s premises; (2) that Winnie Franklin slipped and fell on the syrupy substance; (3) that the syrupy substance had been on defendant’s floor for such a length of time that it would have been discovered in the exercise of ordinary care by defendant’s agents, servants and employees; and (4) such failure to discover the syrupy substance was a proximate cause of plaintiff slipping and falling. The jury also found various amounts of damages sustained by Winnie Franklin. Following receipt of the verdict Safeway Stores, Inc. filed its motion for judgment non obstante veredicto on the grounds that there was no evidence to suрport either the submission or the answers of the jury to special issues 2, 3 and 4, and also the damage issues. The trial court sustained this motion and rendered judgment that Winnie Franklin take nothing.
In her sole point on appeal appellant charges that the court erred in disregarding thе verdict of the jury and rendering judgment non obstante veredicto for the appellee. Appellee challenges the sufficiency of this point as being too general and not in compliance with briefing rules. We overrule appellee’s counterpoint. While the point presented is obviously general, multifarious and global in nature, yet when we examine the statement, argument and authorities under this point, it becomes obvious that she presents two contentions supporting her claim for reversal: (1) that there is evidence of probative force to support the jury’s answers to the vital issues submitted relating to the liability of appel-lee so that the judgment rendered non ob-stante veredicto is not proper; and (2) that appellant should have judgment based upon the verdict of the jury under the doctrine of res ipsa loquitur. This court has consistently held that even though the point of error presented may be broad and general we will consider the same if an examination of the statement, authorities and argument contained in the brief, demonstrates the real thrust of the effort to bring about reversal.
The primary question presented is whether the trial cоurt was legally justified in disregarding the answers of the jury to the special issues submitted and in rendering judgment
non obstante veredicto
pursuant to Texas Rules of Civil Procedure, rule 301. It is of course elementary that in order to sustain the action of the trial court in granting a judgment
non obstante vere-dicto
it must be determined that there is no evidence of probative force upon which the jury could have made the findings relied upon by appellant. Burt v. Lochausen,
*516
Both appellant and appellee are in agreement as to the basic law applicable to the facts of this case. In a slip and fall case involving foreign substance a plaintiff must establish by evidence of probative forcе: (1) that the defendant put the foreign substance on the floor, or (2) that the defendant knew the foreign substance was on the floor and negligently failed to remove it, or (3) that the foreign substance was upon the floor for such a period of time that it would have been discovеred and removed by the defendant had the defendant exercised ordinary, care. Great Atlantic & Pacific Tea Co. v. Giles,
Appellant Winnie Franklin was the only witness who testified concerning the fall. She said that -she went into the Safeway Store to purchase some hamburger buns, ground meat and detergent. After obtaining the meat and buns and placing them in a cart she moved to the detergent display in order to buy the soap. After reaching the counter where the detergent was displayed she said she stepped over with her left foot and reached out for the object she intended to buy. At that time her feet skidded frоm under her and she fell to the floor landing flat on her back. She became dizzy and “kind of woozy” and attempted to get to her feet. When she reached for the basket her head began to “spin” and she fell again, hitting her head on the shelf. After a period of time she got up again. She was asked if she saw anything on the floor where she had fallen and she replied by saying that it was “a dry, syrupy looking chocolate sticky surface of something.” She also said that there were some pecan hulls scattered around. Upon examination she found somеthing that looked like chocolate on her slacks which she was wearing at the time. She also found the same substance on the bottom of her shoes. She said that prior to her fall she had not seen anything on the floor. She conceded that she really did not know whether she slipped on the nut hulls or upon the syrupy substance. She also admitted that she had no knowledge how long either of the substances had been on the floor prior to the time she fell. She went to the checkout counter and reported the fall to the manager of the store who carried her groceries to the car for her.
Appellee Safeway Stores, as the owner of the premises here involved, was not an insurer of the safety of appellant Franklin, a business invitee. McElhenny v. Thielepape,
Appellant acknowledges the lack of direct evidence concerning this vital fact necessary to be established in order to recover in a case of this kind but seeks to stand upon what she calls an inference to be drawn from her testimony that she slipped upon a “dry syrupy looking substance.” She argues that her reference to the substance as being “dry” raises the inference that it had been on the floor for some time before she slipped and fell. Contending that such inference is sufficient to support the jury’s answers, especially in answer to special issue No. 3, appellant relies upon the oрinion in Furr’s, Inc. v. Bolton,
When we consider appellant’s testimony in its most favorable light it does nothing more than raise a suspicion or surmise, and amounts to no more than a mere scintilla of evidence which has long been held to be insufficient to raise an issue of fact. Joske v. Irvine,
Since there is no evidence of probative force to support the jury’s answers to special issues 3 and 4 the trial court correctly disregarded the answers of the jury to these issues and rendered judgment for ap-pellee.
We cannot agree with appellant that the doctrine of
res ipsa loquitur
permits the rendition of judgmеnt for appellant. While it would not be proper to state categorically that
res ipsa loquitur
never applies to a “slip and fall” case the very nature of such an action is such that generally the doctrine would not be applicable. Annotation,
The cases are uniform in holding that in a “slip and fall” case the mere happening of the event does not imply negligence. It becomes the burden of the plaintiff in these cases to allege and prove specific acts of negligence rather than to rely upon the doctrine of res ipsa loquitur. Certainly under the established facts in this record we find no support for the contention that the dоctrine would be applicable. In fact, the trial court did not submit the case to the jury on the theory of res ipsa loquitur. Appellant made no objection to the charge nor did she specifically request the submission of any issue relating to the res ipsa loquitur theory. Tex.R. Civ.P. 279.
Finding no reversible error reflected in this record we affirm the judgment of the trial court.
Affirmed.