OPINION
NYE, Chief Justice.
This is a slip-and-fall case. The defendant, J. C. Penney Company, Inc., appeals from a judgment entered by the trial court which awarded plaintiff R. C. Chavez damages for injuries sustained when he slipped and fell on a banana peel in defendant’s Brownsville store. Trial was to a jury and judgment was entered in accordance with the jury’s several findings. The jury found that:
1) the banana peel had been on the floor such a period of time that it would have been discovered and removed by a J. C. Penney Company employee in the exercise of reasonable care;
2) that on the occasion in question, the failure of any employee of J. C. Penney to discover and remove such banana peel was negligent;
3) that on the occasion, such failure of any employee of J. C. Penney to discover and remove such banana peel was a proximate cause of the fall of Rodolfo C. Chavez;
4) that plaintiff Rodolfo C. Chavez was injured as a result of the occurrence in question; and
5) that plaintiff Rodolfo C. Chavez did not fail to keep a proper lookout for his own safety at the time and place of the occurrence in question.
The jury further found Chavez’ damages to be $210,000.00 for past and future physical pain and mental anguish, loss of future earning capacity, and past and future physical impairment. Additional sums of $8,000.00 for future medical treatment were also found by the jury. Only the first and second findings of the jury are challenged on appeal.
Defendant J. C. Penney contends first that the trial court erred in entering judgment in favor of plaintiff based on the jury’s answer to special issue no. one because there was “no evidence”, or “insufficient evidence”, or it was “against the overwhelming weight and preponderance of the evidence” that the banana peel (upon which plaintiff slipped) had been on the floor for such a period of time that it would have been discovered and removed by an employee of Penney in the exercise of ordinary care. Appellant also asserts that the failure to discover and remove such banana peel was not negligence as a matter of law. A review of the pertinent testimony of the various witnesses is a necessary prelude to our decision on Penney’s evidentiary points.
In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the jury findings and disregard all contrary evidence and inferences. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 359 (1960).
Following the no-evidence rule, we find from the voluminous record that there are two sets of evidentiary facts that could have been consideréd by the jury in answering the special issues. Viewing the evidence as we must, it shows that plaintiff Chavez went to Penney’s store in Amigo-land Mall in Brownsville, Texas, to purchase some fishing equipment. After he had paid for his purchase, and while he was leaving the store, he slipped and fell on a banana peel that was lying on the floor in front of the checkout counter of the J. C. Penney [401]*401store. At the time of the occurrence, Penney maintained a grocery department in its store located in a separate part of the building. Groceries were checked through a different cash register in another part of the building. The Penney personnel condoned the practice of permitting customers to consume food and drinks in the store, and they were aware that this occurred regularly.
In the grocery part of the store, Penney displayed bananas in open bins in the produce section. Normally they would remove any bananas that appeared to be discolored or dark due to age. These would be returned to the wholesalers. Evidence showed that it took approximately 36 hours for a fresh, unpacked banana to turn a dark color, i. e., from yellow to brown. Bananas would not be kept on display for sale to the public longer than 24 hours.
After plaintiff Chavez slipped and fell, a customer helped him to his feet and an employee of Penney brought him a chair. As he was sitting in the chair, a female customer came over and showed him a banana peel and said, “Look, this is probably what you fell on.” The lady then gave the banana peel to the checker to throw away.
Several witnesses saw the banana peel after Chavez fell. It was discolored, “gooey” and “black with yellow stripes”; the “gooey” substance was from the inside of the peel; there was no fruit in the peeling; it was about four or five inches long; and after the fall, the marking on the floor was about a foot long. Mrs. White, who was standing in line behind plaintiff Chavez, stated that the banana peel looked like it was several hours old. She said that she would never buy a banana having a peeling on it that looked like that one. Her husband, Clifford White, the man who helped lift Chavez from the floor, described the banana peel as dark in color.
Since the evidence showed that only fresh, yellow bananas were available at the J. C. Penney store, the jury could have reasonably concluded that it was such a fresh banana when it was dropped, and that it turned dark and discolored only after lying on the floor for a long period of time. The record showed that the counter at which Chavez fell was built so that it had an indentation under it where a customer could place his feet when standing at the cash register. It is also logical to believe, as apparently the jury did, that the banana peel was on the floor by the counter a long period of time without actually being discovered and removed by store personnel, and that had they been exercising reasonable care it would have been removed. Appellant’s no-evidence points of error are overruled.
Appellant also raises an insufficient-evidence point of error regarding the jury’s verdict. The duty of this Court, upon presentation of an insufficient-evidence point is to examine all the evidence, including any evidence contrary to the jury’s verdict. If this Court finds that the evidence supporting the jury’s finding is so weak or that the evidence to the contrary is so overwhelming that the finding should be set aside, then a new trial should be ordered. Otherwise, this Court will affirm the judgment. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 359 (1960).
Penney’s routine cleaning procedures were for the cleaning crew, at the end of each day, to sweep up trash, wet-mop the floors, and then wax high-traffic areas with a buffing machine. This was done at night after the store was closed and was the only regular cleaning procedure undertaken. The store’s two janitors were available at all times to sweep or to clean up spills. All of the store employees were instructed to take any necessary steps to keep the store clean and the floor free of foreign substances. Each morning the store manager, Kirkland, would routinely inspect the entire store, including the checkout area.
Kirkland testified that throughout the day of the accident he had periodically inspected the floor around the checkout counters, including checkout counter number 4, where the accident took place. Kirkland [402]
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
NYE, Chief Justice.
This is a slip-and-fall case. The defendant, J. C. Penney Company, Inc., appeals from a judgment entered by the trial court which awarded plaintiff R. C. Chavez damages for injuries sustained when he slipped and fell on a banana peel in defendant’s Brownsville store. Trial was to a jury and judgment was entered in accordance with the jury’s several findings. The jury found that:
1) the banana peel had been on the floor such a period of time that it would have been discovered and removed by a J. C. Penney Company employee in the exercise of reasonable care;
2) that on the occasion in question, the failure of any employee of J. C. Penney to discover and remove such banana peel was negligent;
3) that on the occasion, such failure of any employee of J. C. Penney to discover and remove such banana peel was a proximate cause of the fall of Rodolfo C. Chavez;
4) that plaintiff Rodolfo C. Chavez was injured as a result of the occurrence in question; and
5) that plaintiff Rodolfo C. Chavez did not fail to keep a proper lookout for his own safety at the time and place of the occurrence in question.
The jury further found Chavez’ damages to be $210,000.00 for past and future physical pain and mental anguish, loss of future earning capacity, and past and future physical impairment. Additional sums of $8,000.00 for future medical treatment were also found by the jury. Only the first and second findings of the jury are challenged on appeal.
Defendant J. C. Penney contends first that the trial court erred in entering judgment in favor of plaintiff based on the jury’s answer to special issue no. one because there was “no evidence”, or “insufficient evidence”, or it was “against the overwhelming weight and preponderance of the evidence” that the banana peel (upon which plaintiff slipped) had been on the floor for such a period of time that it would have been discovered and removed by an employee of Penney in the exercise of ordinary care. Appellant also asserts that the failure to discover and remove such banana peel was not negligence as a matter of law. A review of the pertinent testimony of the various witnesses is a necessary prelude to our decision on Penney’s evidentiary points.
In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the jury findings and disregard all contrary evidence and inferences. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 359 (1960).
Following the no-evidence rule, we find from the voluminous record that there are two sets of evidentiary facts that could have been consideréd by the jury in answering the special issues. Viewing the evidence as we must, it shows that plaintiff Chavez went to Penney’s store in Amigo-land Mall in Brownsville, Texas, to purchase some fishing equipment. After he had paid for his purchase, and while he was leaving the store, he slipped and fell on a banana peel that was lying on the floor in front of the checkout counter of the J. C. Penney [401]*401store. At the time of the occurrence, Penney maintained a grocery department in its store located in a separate part of the building. Groceries were checked through a different cash register in another part of the building. The Penney personnel condoned the practice of permitting customers to consume food and drinks in the store, and they were aware that this occurred regularly.
In the grocery part of the store, Penney displayed bananas in open bins in the produce section. Normally they would remove any bananas that appeared to be discolored or dark due to age. These would be returned to the wholesalers. Evidence showed that it took approximately 36 hours for a fresh, unpacked banana to turn a dark color, i. e., from yellow to brown. Bananas would not be kept on display for sale to the public longer than 24 hours.
After plaintiff Chavez slipped and fell, a customer helped him to his feet and an employee of Penney brought him a chair. As he was sitting in the chair, a female customer came over and showed him a banana peel and said, “Look, this is probably what you fell on.” The lady then gave the banana peel to the checker to throw away.
Several witnesses saw the banana peel after Chavez fell. It was discolored, “gooey” and “black with yellow stripes”; the “gooey” substance was from the inside of the peel; there was no fruit in the peeling; it was about four or five inches long; and after the fall, the marking on the floor was about a foot long. Mrs. White, who was standing in line behind plaintiff Chavez, stated that the banana peel looked like it was several hours old. She said that she would never buy a banana having a peeling on it that looked like that one. Her husband, Clifford White, the man who helped lift Chavez from the floor, described the banana peel as dark in color.
Since the evidence showed that only fresh, yellow bananas were available at the J. C. Penney store, the jury could have reasonably concluded that it was such a fresh banana when it was dropped, and that it turned dark and discolored only after lying on the floor for a long period of time. The record showed that the counter at which Chavez fell was built so that it had an indentation under it where a customer could place his feet when standing at the cash register. It is also logical to believe, as apparently the jury did, that the banana peel was on the floor by the counter a long period of time without actually being discovered and removed by store personnel, and that had they been exercising reasonable care it would have been removed. Appellant’s no-evidence points of error are overruled.
Appellant also raises an insufficient-evidence point of error regarding the jury’s verdict. The duty of this Court, upon presentation of an insufficient-evidence point is to examine all the evidence, including any evidence contrary to the jury’s verdict. If this Court finds that the evidence supporting the jury’s finding is so weak or that the evidence to the contrary is so overwhelming that the finding should be set aside, then a new trial should be ordered. Otherwise, this Court will affirm the judgment. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 359 (1960).
Penney’s routine cleaning procedures were for the cleaning crew, at the end of each day, to sweep up trash, wet-mop the floors, and then wax high-traffic areas with a buffing machine. This was done at night after the store was closed and was the only regular cleaning procedure undertaken. The store’s two janitors were available at all times to sweep or to clean up spills. All of the store employees were instructed to take any necessary steps to keep the store clean and the floor free of foreign substances. Each morning the store manager, Kirkland, would routinely inspect the entire store, including the checkout area.
Kirkland testified that throughout the day of the accident he had periodically inspected the floor around the checkout counters, including checkout counter number 4, where the accident took place. Kirkland [402]*402assumed the duty of “floor man” and testified that he had walked up and down inspecting the checkout area that particular day. He specifically recalled looking at the floor of the aisle where the accident took place prior to Chavez’ fall. He stated:
“You stand right there by this till. If you have normal eyesight, you can see every inch of the floor space. So, you don’t have to look down and stare. It is just looking in the vicinity of the area, watching the customers, looking down occasionally, walking up and down. I am going to say that in the period of time, a minute or two, I am positive I gazed at the floor. It had to be I gazed at the floor.”
He watched Chavez make his purchase and saw him turn and fall. He observed the entire incident, but he did not see the banana peel.
The head cashier was the second of three Penney employees who had the immediate area under observation at all times. Sophia Davila inspected the checkout counters and made her routine rounds in the area. As part of her responsibilities, she made sure that there was no litter on the floor around the checkout counters. On the day of the accident, she was standing close to Kirkland. She had a clear view of the floor area in front of the checkout counter and was in a position to see Chavez and the area where he fell just as clearly as Mr. Kirkland. She did not see the banana peel.
The cashier at counter number 4 was the third employee who could see the entire floor area next to the checkout counter where Chavez fell. Ofelia Rodriguez stated that business on this particular day was “heavy”. It was a busy day, and she had been working at her cash register without a break for four hours. It was part of her duties as a checker to see that there was nothing on the floor and to generally keep the counter and the surrounding area clean. She testified that while she was working she did not always have time to look at the floor, and on the day of the accident, she had not had an opportunity to check the floor in front of her counter. She did not see the banana peel before Chavez fell.
There is another set of evidentiary facts that was very interesting. The head cashier, Ms. Davila, observed a man carrying a young child eating a banana. Ms. Davila had watched the man carry the child throughout the store while the child was eating the banana. The banana was not a whole banana, but a peeled-down banana. The child appeared to be only one or two years old. Ms. Davila testified that the banana had brown spots on it. She watched the man at the cash register paying for his merchandise, and at that time, the child he was holding had a banana peel in his hand. She testified that at this time she checked the floor and it was clean. Shortly thereafter, she was called upon to make change. She stated that approximately two or three minutes passed between the time she saw the man and the child with the banana peel in front of the register and the time she was called to the accident scene. She did not see Chavez fall. Ms. Davila testified that she saw plaintiff Chavez in line somewhere behind the man and the child with the banana.
On cross-examination, Ms. Davila was asked why she was watching the man carrying the child with the banana. She stated, “because, you know how kids are. They are always spilling, dropping things when they eat. I just wanted to make sure the floor wasn’t going to get any part of it.” Ms. Davila inferentially admitted that she was distracted and turned away to take care of other business and did not further observe the child or the banana peel he was holding until after Chavez fell.
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land or premises if, but only if, he
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and ,
(c) fails to exercise reasonable care to protect them against the danger.”
[403]*403Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.Sup.1975).
J. C. Penney Company as an occupier of the premises, had a duty to use ordinary care to keep the premises in a reasonably safe condition for its invitees or to warn them of the hazard. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex. Sup. 1968); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963); H. E. B. Food Stores v. Slaughter, 484 S.W.2d 794 (Tex.Civ.App. — Corpus Christi 1972, writ dism’d). What constitutes a hazard or danger depends upon the facts or circumstances of each case. “Whether a condition constitutes a danger is a function of reasonableness. That is, if the ordinarily prudent man could foresee that harm was a likely result of a condition, then it is a danger.” Rosas v. Buddies Food Store, supra at 537. The J. C. Penney store employees were charged with this type of responsibility.
They (Penney) sold foodstuffs in their store. They permitted patrons to eat bananas and other foods in their store. They apparently realized that this created a danger because they had three immediate employees commissioned to keep the premises in a reasonably safe condition. Yet the hazard was indisputedly there. They did not warn their invitee (Chavez) of the presence of this banana peel.
The store manager was standing in a position where he could see every square inch of the floor and did not see it. The head cashier had a clear view of the floor area in front of the checkout counter and did not see it. The cashier whose responsibility was to see to it that nothing was on the floor and to generally keep the counter and the surrounding area clear had worked many hours without a break and failed to check the floor in front of her counter. She did not see it. The jury found, in effect, that any one of these employees, had they exercised ordinary care, would have discovered and removed the banana peel from the floor. These store employees were commissioned to keep a lookout for the very thing that caused the mischief. They were admittedly in a position where they could have seen and removed the banana peel— and did not. The jury found that this peel was there a sufficient length of time for these employees to have discovered it, had they exercised ordinary care.
After carefully reviewing the record, we find that there is evidence, both direct and circumstantial, that can and does uphold the jury’s answer to the special issues. The points of error regarding factual insufficiency of the evidence are overruled. We find that the judgment of the trial court is not wrong or unjust. It is accordingly affirmed.
AFFIRMED.