Hill v. Winn Dixie Texas, Inc.

824 S.W.2d 311, 1992 Tex. App. LEXIS 290, 1992 WL 16619

• Court: Court of Appeals of Texas
• Decided: February 4, 1992
• Docket: No. 6-91-113-CV
• Status: Published

Opinions

OPINION

BLEIL, Justice.

Kerry Hill appeals the take-nothing judgment in his slip-and-fall case against Winn Dixie Texas, Inc. On February 3, 1990, Hill stepped on a cookie and fell while inside Winn Dixie’s store. The only issues are whether an instruction regarding unavoidable accident was proper and whether the jury’s failure to find negligence was against the great weight and preponderance of the evidence. We determine that the instruction on unavoidable accident was proper and that sufficient evidence supports the findings and affirm.

At the time of Hill’s fall, there were two Winn Dixie employees stocking the shelves in the area. The stocker closest to the fall had been there for fifteen or thirty minutes and saw no other customer walk up the aisle. Further, he saw no cookie on the floor while walking to his stocking position. Fred Strong, the assistant manager of the store, walked the store and saw no cookie on the floor approximately one hour to one and one-half hours before the fall. Also, Hill did not see the cookie before he fell.

The trial court, in its charge to the jury, submitted an instruction on unavoidable accident. Hill objected on the basis that there was no evidence to support the instruction.¹ The trial court is generally allowed broad discretion in submitting the charge to the jury in the trial of a case. See Part II, Section 11, D, entitled CHARGE TO THE JURY, Tex.R.Civ.P. 271-279. In submitting cases to the jury upon broad-form questions, the trial court exercises broad discretion. Likewise, in the submission of jury instructions and definitions, the trial court exercises broad discretion. Texas Dep’t of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex.1990); Mobil Chem. Co. v. Bell, 517 S.W.2d 245 (Tex.1974); Louisiana & Arkansas Ry. Co. v. Capps, 766 S.W.2d 291 (Tex.App.-Texarkana 1989, writ denied); Tex.R.Civ.P. 278. Abuse of that discretion occurs only when the trial court acts without reference to any guiding principle. Texas Dep’t of Human Serv. v. E.B., 802 S.W.2d at 649. An instruction on unavoidable accident is properly submitted if any evidence shows that neither party to the incident proximately caused it. Wisenbarger v. Gonzales Warm Springs Hosp., 789 S.W.2d 688, 692 (Tex.App.-Corpus Christi 1990, writ denied).

The Winn Dixie assistant manager walked the store and kept a close lookout for things which may be lying on the floor and dangerous to the store’s patrons. He saw no cookie in the aisle where the incident occurred. Further, there was a Winn Dixie employee stocking shelves in the immediate area of the incident, and he saw no cookie. Also, Hill saw no cookie before his fall. Here, the trial court broadly submitted jury questions concerning negligence and proximate cause and gave the jury a proper definition of unavoidable accident. With this evidence, the trial court’s acts in instructing the jury were not without reference to any guiding principles. Hill shows no trial court error or abuse of its broad discretion in the manner in which the trial court submitted this case to the jury-

Hill relies on Hukill v. H.E.B. Food Stores, Inc., 756 S.W.2d 840 (Tex.App.Corpus Christi 1988, no writ), to support his contention that an unavoidable accident instruction was improper. In Hukill, H.E.B. admitted that the only way the accident could occur was through employee negligence, and H.E.B. failed to show the actual procedures used by the store to keep the floors clean on the day of the accident. H.E.B.’s failure to put evidence on of the actual procedures used and their admission of employee negligence ruled out any extraneous activity on which to base the unavoidable accident instruction. This was not the state of the evidence in the present case. Therefore, Hukill is inapposite.

Hill also claims that the jury’s findings were against the great weight and preponderance of the evidence. The jury answered the questions submitted to it in favor of Winn Dixie. The jury did not find that Winn Dixie was negligent. When a jury fails or refuses to find from a preponderance of the evidence that a fact exists which one party has the burden to prove, this means that the party did not discharge its burden of proof. Morris v. Holt, 714 S.W.2d 311, 313 (Tex.1986); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). When it is urged on appeal that a failure to find a fact is so against the great weight and preponderance of the evidence as to be wrong and unjust, the court’s fact-finding power is invoked, and all the evidence is weighed in making that determination. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); Stuckey v. Conveying Techniques, Inc., 753 S.W.2d 449, 450 (Tex.App.-Texarkana 1988, writ denied); see also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988). Considering all the evidence, the verdict is not against the weight of the evidence as to be manifestly unjust. Here, there was testimony which set out the store’s policies on keeping the floors clean. Further, there was testimony of the actual procedures employed by Winn Dixie on the day of the fall. There was enough evidence for the jury to find that Winn Dixie was not negligent.

The trial court’s judgment is affirmed.

1 . At trial, Hill raised no issue about the propriety of the terms of the instruction given or about the proper legal definition of unavoidable accident.