424 S.W.2d 270 | Tex. App. | 1968
This is a damage suit filed by Kathryn M. Caveness and husband, Buster Caveness, against Grand Leader Dry Goods Company, Inc., for injuries sustained by Mrs. Caveness by reason of the alleged negligence of the defendant, on April 21, 1965. On a jury verdict on special issues, the trial court rendered judgment for plaintiffs for $9,070.00.
The jury found: Mrs. Caveness did sustain such injury; Mrs. Bradshaw, a store employee, was negligent in falling over a filing cabinet drawer in the store; in leaving the drawer pulled out the defendant was negligent; the filing cabinet was located where it could not be used with safety and such was negligence; defendant failed to furnish plaintiff a safe place to work and as such was negligent; plaintiff’s injuries were not the result of an unavoidable accident. The jury also found that each act of negligence was a proximate cause of the injuries sustained by Mrs. Caveness.
The facts are somewhat unusual. Mrs. Caveness and Mrs. Bradshaw were each
The evidence shows that Mrs. Caveness, prior to the accident, had discussed the matter of the narrow space caused by the filing cabinet, and that she had told the manager of the store, Louie Cohn, that the counter was too close to the wall for safety.
The record further shows that the defendant store was within the provisions of the Workmen’s Compensation Act and that it had about five employees, but that the defendant had no policy of Workmen’s Compensation. Therefore, under the terms of Art. 8306, Secs. 1 and 4, defendant was deprived of its defenses such as contributory negligence, negligence of a fellow servant and assumed risk. Sears Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238 (Tex.Sup.); Grace Mfg. Co. v. Arp, 311 S.W.2d 278, 282 (Tex.Civ.App.), writ ref., n. r. e.
The defendant-appellant attacks the judgment of the trial court and the findings of the jury (omitting certain points of error on assumed risk and the fellow servant rule), on the grounds that the jury findings of negligence are not sustained by the evidence and that the jury was guilty of misconduct. We take the first point regarding negligence to mean and to include proximate cause since defendant argues the point both ways. We believe it is clear enough that defendant contends that as a matter of law, the injuries to Mrs. Caveness could not have been proximately caused by the negligence of the defendant as found by the jury.
The law is settled that the evidence must show negligence and must also show that such negligence was a proximate and not a remote cause of the resulting injuries. The evidence must justify the conclusion that such injury was the natural and probable result thereof. In order to justify such a conclusion, the evidence must justify a finding that the party committing the negligent act or acts ought to have foreseen the consequences thereof in the light
It will be recalled that the jury found that Mrs. Bradshaw’s falling over the drawer was negligence, and that such act as a proximate cause of Mrs. Kathryn Caveness’ injuries. Mrs. Bradshaw was an employee of defendant acting within the scope of her employment at the time, and her acts and conduct were the acts and conduct of defendant. Especially is this true in a case against a non-subscriber under Workmen’s Compensation. Art. 8306, Secs. 1 and 4. We believe that this factual situation meets the test of proximate cause, and that Mrs. Caveness’ actions in going to the rescue of Mrs. Bradshaw under the circumstances is something that might reasonably be foreseen by the negligent defendant and is a natural and probable consequence of defendant’s negligence. Under the undisputed evidence, it would have taken an unreasonable person to stand by and do nothing under the circumstances. Mrs. Caveness’ actions were natural and humanitarian and under no theory could her conduct be considered reckless or rash. Longacre v. Reddick, 215 S.W.2d 404 (Tex.Civ.App.), Mand. Overruled; Reddick v. Longacre, 228 S.W.2d 264, 269 (Tex.Civ.App.), writ ref., n. r. e. No new force had been set in motion which, coupled with the condition created by the fall, resulted in injury to plaintiff. The occurrence was but a single event. The defendant negligently created a situation which provoked the rescue effort and the rescuer’s resulting injury was something that might well have been foreseen or anticipated. See Kelley v. Alexander, 392 S.W.2d 790, 792 (Tex.Civ.App.), writ dismd.; Keystone-Fleming Transport, Inc. v. City of Tahoka, 315 S.W.2d 656, 663 (Tex.Civ.App.), writ ref., n. r. e.; 40 Tex.Jur.2d, p. 633, Sec. 117. The law favors conduct such as that shown by the plaintiff in this case. Wichita Falls Traction Co. v. Hibbs, 211 S.W. 287 (Tex.Civ.App.), no writ history.
The facts concerning the above incident were sufficiently pleaded by plaintiff. However, there was no specific issue submitted to the jury which dealt with plaintiff’s conduct in attempting to assist Mrs. Bradshaw. We believe, however, that the jury’s findings that Mrs. Bradshaw’s negligent fall was a proximate cause of Mrs. Caveness’ injuries is sufficient under the definition of proximate cause and the law pertaining thereto in a case against a non-subscriber for the reasons stated above. In any event, under Rule 279, Texas Rules of Civil Procedure, when no objection or request is made, issues referable to those found by the jury but omitted are deemed to have been found by the court in such manner as to support the judgment. Sinclair Refining Co. v. Winder, 340 S.W.2d 503 (Tex.Civ.App.), writ ref.; Strauss v. LaMark, 366 S.W.2d 555, 557 (Tex.Sup.). If issues were omitted, we believe the above rule applies here.
Moreover, the facts concerning Mrs. Caveness’ conduct were clear, positive and undisputed. There is no possible inference from the evidence that plaintiff was impelled to act other than to free Mrs. Bradshaw from a position of imminent peril.
What we have said above would apply to the remaining liability issues found by the jury in favor of plaintiffs.
Defendant contends that the jury was guilty of misconduct in discussing whether or not defendant had insurance and in hearing the foreman of the jury state
The judgment of the trial court is affirmed.