Price v. Minyard's Food Stores, Inc.

424 S.W.2d 51, 1968 Tex. App. LEXIS 2220
CourtCourt of Appeals of Texas
DecidedJanuary 26, 1968
DocketNo. 17006
StatusPublished
Cited by4 cases

This text of 424 S.W.2d 51 (Price v. Minyard's Food Stores, Inc.) 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
Price v. Minyard's Food Stores, Inc., 424 S.W.2d 51, 1968 Tex. App. LEXIS 2220 (Tex. Ct. App. 1968).

Opinion

DIXON, Chief Justice.

Appellants Annie Lorene Price and husband Otis Lynn Price sued Minyard’s Food Stores, Inc. to recover damages for personal injuries sustained by Mrs. Price when she stumbled over a small box of merchandise lying on the floor near the center of an aisle in appellee’s supermarket.

Appellee filed a motion for summary judgment in which motion it asserts (1) that it breached no duty it owed to Mrs. Price; and (2) that Mrs. Price was guilty of contributory negligence as a matter of law in that she failed to keep a proper lookout. The trial court sustained appellee’s motion and rendered summary judgment that appellants take nothing by their suit.

The record consists only of the pleadings and the deposition of Mrs. Price. In a footnote hereto we quote material parts of her testimony.1 We summarize her testimony in general in the following paragraphs.

[53]*53On Friday, July 22, 1966, Mrs. Price accompanied by her two sons, aged thirteen and nine years respectively, entered appel-lee’s store to make a number of purchases. Her residence was close to the store. She had shopped there many times before — in fact she or one of her boys went there nearly every day to make purchases. On the occasion in question the older boy was pushing the cart onto which Mrs. Price was loading the items she intended to purchase. The premises were well lighted. The floors were clean. Boxes were stacked all over the store. Mrs. Price was aware that appellee’s employees were “putting out” merchandise, though at the time there were “no boys around putting out anything.”

The accident occurred in a wide aisle. A number of large boxes were stacked in a row close to the center, but not exactly in the center of the aisle. On one side of the row of stacked large boxes there was space enough left for the cart to be pushed through. On the other side there was space enough for a person to walk through, but not space enough to push the cart through. The large boxes in the row were stacked waist high or higher. Mrs. .Price saw them. But close to the end of the row of large boxes a small box, eight or ten inches high, was lying on the floor by itself. She did not see this small box. She stopped at a display counter to pick up some picnic supplies. She was on the narrow side of the aisle past the row of large stacked boxes. She stepped back from the display counter, not knowing that the small box was in the space back of her. She tripped and fell backward over the small box, sustaining serious injuries.

Mrs. Price says that she did not see the small box because it was hidden from view by the stack of larger, taller boxes. She came down the narrow side of the aisle, saw the stack of large boxes, but the small short box beyond them she did not see because it was out of sight as she approached the picnic supply counter. She was not looking at the floor. She was looking at the merchandise. At the time of the accident she had picked up some paper plates from the picnic counter and was carrying them in her arms. She stepped back before turning around, intending to go to the candy counter [54]*54on the other side of the aisle. She had not been down that aisle before on this particular day.

In two points on appeal appellants argue (1) that the facts do not present a situation in which appellee may be exonerated under the “no duty” doctrine; and (2) that the trial court erred in holding that Mrs. Price was guilty of contributory negligence as a matter of law in that she failed to keep a proper lookout. In counterpoints appellee takes the opposite positions.

In deciding whether the testimony of Mrs. Price presents fact questions we must bear in mind certain rules laid down by our Supreme Court in regard to summary judgments. The burden of proof is on the movant. All doubts and uncertainties as to the existence of a genuine issue as to a material fact are to be resolved against the •movant. The evidence must be viewed in a light most favorable to the party opposing the motion. The evidence which tends to support the position of the party opposing the motion is to be accepted as true. The record before the court must establish conclusively that there are no issues of material fact to be decided. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup.1965); First State Bank of Monahans v. Henderson, 377 S.W.2d 96, 99 (Tex.Civ.App., El Paso 1964, no writ); Zapffe v. McElroy, 364 S.W.2d 299, 300 (Tex.Civ.App., Dallas 1963, no writ); Pattison v. Highway Ins. Underwriters, 292 S.W.2d 694 (Tex.Civ.App., Galveston 1956, writ ref’d n. r. e.); Felker Lbr. Co. v. Superior Ins. Co., 272 S.W.2d 161 (Tex.Civ.App., Texarkana 1954, writ ref’d n. r. e.) ; Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App., El Paso 1953, writ ref’d n. r. e.); Whelan v. State, 252 S.W.2d 271, 273 (Tex.Civ.App., Texarkana 1952, no writ).

It is in the light of the above rules that we must consider the undisputed testimony of Mrs. Price, the only evidence before us. After careful consideration of her testimony we cannot say that there is no evidence that appellee failed in its duty to keep the premises in a reasonably safe condition for Mrs. Price, who was an invitee. That duty has been described by our Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup.1963); Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 63 (1953); and Scott v. Liebman, 404 S.W.2d 288, 292 (Tex.Sup.1966). See also Briones v. Levine’s, Inc., 415 S.W.2d 460 (Tex.Civ.App., Austin 1967, writ ref’d n. r. e.).

It is true that Mrs. Price had been in the store many times, but she testified that she had not been down this aisle before on this particular day. Her testimony is also to the effect that on this particular day the small box lying in the aisle was hidden from her view by the taller stack of large boxes. In Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60, our Supreme Court said that it is not the philosophy of Adair 2 that one trip through a hall of dangers which are not open and obvious would relieve the owner of his duty to eliminate the danger or to warn. This statement was reiterated in Wesson v. Gillespie, 382 S.W.2d 921, 926 (Tex.Sup.1964), though it was held to be inapplicable under the facts of that case. See also Huvar v. Rex Corp., 387 S.W.2d 82 (Tex.Civ.App., San Antonio 1965, no writ). As we see it the undisputed testimony of Mrs. Price raises a fact issue in this summary judgment proceeding.

We come now to appellants’ second point of error — that the court erred in holding as a matter of law that Mrs.

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