J. Weingarten, Inc. v. Obiedio

515 S.W.2d 308
CourtCourt of Appeals of Texas
DecidedOctober 10, 1974
Docket16312
StatusPublished
Cited by8 cases

This text of 515 S.W.2d 308 (J. Weingarten, Inc. v. Obiedio) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J. Weingarten, Inc. v. Obiedio, 515 S.W.2d 308 (Tex. Ct. App. 1974).

Opinion

ON MOTION FOR REHEARING

EVANS, Justice.

Mrs. Delfina Obiedio recovered judgment on a jury verdict against Weingarten in the amount of $6,500.00 as damages for injury sustained in one of Weingarten’s retail grocery stores. In our original opinion we affirmed the judgment of the trial court. On appellant’s motion for rehearing we remain of the opinion that the trial court’s judgment must be affirmed but there are certain matters covered in our original opinion which we have determined *310 should be clarified. We, accordingly, withdraw our original opinion and this opinion is substituted therefor.

Mrs. Delfina Obiedio fell, suffering a broken wrist, when she pulled on a shopping cart in Weingarten’s No. 14 grocery store. Mrs. Obiedio testified that when she pulled on the shopping cart basket, the whole row of carts (called “bascarts”) came toward her causing her to fall on her right hand. The jury found that the bas-carts were bent and defective; that this was a dangerous condition maintained by Weingarten’s which knew or should have known of the condition; and that Wein-garten’s was negligent in failing to repair or replace the bascarts. The jury also answered the causation issue in favor of Mrs. Obiedio and refused to find that she had failed to keep a proper lookout or that she had pulled on the bascart in such a manner as would not have been done by a person in the exercise of ordinary care.

In 14 points of error Weingarten’s attacks the legal and factual sufficiency of the evidence on questions of primary negligence and proximate cause.

Basically Weingarten’s position is that there is no evidence in the record from which the jury could properly have inferred that the particular bascarts involved in Mrs. Obiedio’s accident were benfcr^nd defective.

Mr. Obiedio testified that he drove his wife to the Weingarten’s No. 14 store on the evening in question so that she could buy groceries. They lived about four or five blocks from the store and bought groceries there every week. Mr. Obiedio usually stayed in the car while his wife shopped and when she had completed her shopping he would go in and help her with the groceries. Shortly after Mrs. Obiedio went into the store on the day in question, a lady came running out and told Mr. Ob-iedio that his wife had fallen down.

Mrs. Obiedio testified that she walked into the store and reached for a bascart with her right hand. She said the baskets were of the type that the basket flips up and the other basket moves in behind it; that there was a row of approximately 50 bascarts nested together. She said when she pulled bn the bascart the whole row of bascarts came toward her causing her to fall. She said there must have been about five or six bascarts out of the big stack that came toward her and they caused her to lose her balance, pushing her to the floor. She said she made no inspection of the baskets and just walked up and pulled on the first basket in line. She said when she pulled on the basket all the bascarts came toward her and threw her to the floor. She said: “I pull light but they were all stuck together.” She said she had had a basket stick before, but did not know that “the whole thing would come toward me.”

Weingarten argues that the record is silent as to any direct evidence of the condition of the bascarts in question at the time of the occurrence. It contends that Mrs. Obiedio’s testimony shows she did not inspect or even observe the particular bas-carts which were involved in her injury and that her testimony is contradictory as to the extent of her observation on that date. Weingarten further contends the trial court erred in permitting Mrs. Obie-dio to state, over objection, that she had observed the condition of the bascarts, after earlier testifying that she had not made an observation about the bascarts on the date that she was injured.

Mrs. Obiedio testified that when she pulled upon the bascart it stuck together with five or six others and that all came together at her in a bunch, causing her to fall to the floor. Weingarten’s shop dispatcher and maintenance man testified that it was “very, very possible” that several bascarts nested in a row would stick together if they were bent. Weingarten’s .property accountant testified that the bas-carts were repaired in their shop so that they would be “easy to push in the store.” He admitted knowledge that the purpose of *311 such repair was to avoid having the bas-carts stick together and come toward a customer in a bunch when one bascart was pulled loose.

The circumstances in which an injury occurred may sometimes afford proof of the act or condition which caused the injury. Gulf Pipe Line Co. v. Bailey, 40 S.W.2d 938, 941 (Tex.Civ.App., Texarkana 1931, writ dism’d); Washington v. Missouri, K. & T. Ry. Co. of Texas, 90 Tex. 314, 38 S.W. 764 (1897). The jury was at liberty to conclude from Mrs. Obiedio’s testimony describing the manner in which the accident occurred and the testimony of Weingarten’s employees, which tended to' show how the occurrence could likely have happened, that the injury was caused by the bent and defective condition of one or more of the bascarts in question.

That there might be more than one reason why the bascarts would stick and come together in a bunch does not necessitate a conclusion that the evidence was legally insufficient to support the jury’s verdict. Washington v. Missouri, K. & T. Ry. Company of Texas, supra. Mrs. Obiedio was not required to exclude every other possible cause of the occurrence. Burlington-Rock Island Railway Company v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943).

“[I]f a cause is shown that might produce an event and it being shown that an event of that particular character did occur, it may be inferred that the known possibility produced the result. Plaintiff is not required to exclude an appreciable chance that the ' event might have occurred in some other way. Expressed otherwise, a conclusion of causal connection may be inferred by a balance of probabilities.” Collier v. Hill & Hill Exterminators, 322 S.W.2d 329, 337 (Tex.Civ.App., Houston [1st Dist.] 1959, n. w. h.).

Weingarten managed the store in question and furnished the bascarts to its customers for their use and convenience while shopping at its store. It assumed exclusive responsibility for the maintenance and repair of its bascarts and if the occurrence was the result of some cause other than their defective condition, Weingarten had the means and opportunity to ascertain that fact and make appropriate explanation. McCray v. Galveston, H. & S. A. R. Co, 89 Tex. 168, 34 S.W. 95 (1896); Roberts v. Texas & Pacific Railway Company, 142 Tex. 550, 180 S.W.2d 330 (1944); Texas & Pacific Railway Company v. Riley, 183 S.W.2d 991 (Tex.Civ.App., Texarkana 1944, writ ref.).

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