Strauss v. La Mark

360 S.W.2d 583, 1962 Tex. App. LEXIS 2740

• Court: Court of Appeals of Texas
• Decided: July 13, 1962
• Docket: No. 13916
• Status: Published

Opinions

COLEMAN, Justice.

This is an appeal from a judgment for •the defendant in a personal injury case.

Appellant, an elderly woman, alleged that she received serious personal injuries by reason of a fall in the beauty shop owned and operated by appellees, caused by tripping over an electrical cord negligently permitted by appellees to remain in an aisle of the shop.

Special Issue No. 1 read:

“Do you find from a preponderance of the evidence that at the time and on the occasion in question the electric cord attached to the hair dryer extended into the aisle of the beauty shop ?”

Other issues inquiring of the negligence of appellees and contributory negligence of appellant were predicated on an affirmative answer to Special Issue No. 1. The jury did not answer these issues since they answered Special Issue No. 1 in the negative. In answer to Special Is'sue No. 9 the jury found that the fall was the result of an unavoidable accident.

Appellant seeks reversal of the judgment on the ground that the jury’s answer to Special Issue No. 1 is contrary to the great weight and preponderance of the evidence and that the jury’s answer to Special Issue No. 9 is supported by no evidence, or insufficient evidence.

We have concluded that this case must be reversed and remanded for a new trial for the reason that the answer made by the jury to Special Issue No. 1 was contrary to the great weight and preponderance of the evidence.

There was testimony by a disinterested witness that the electric cord had extended into an aisle of the beauty shop all the morning prior to the accident. The plaintiff testified that at the time of the accident she felt a pull at her foot and leg and that after she fell she saw the cord and realized that she had tripped over it. No other witness saw the cord in the aisle prior to the accident; neither did any of them testify to facts from which the conclusion could reasonably be drawn that they necessarily would have seen the cord had it been in the aisle. It is undisputed that the cord was in the aisle immediately after the appellant fell and that one of the prongs of a transformer, into which the cord was plugged, was broken off. The chair to which the cord was attached was moved a few inches, but the cord had at least two feet of slack. One of the appellees testified that the chair was very heavy and that bumping into it would scarcely move it, and that it could not be pushed more than two feet because of the conduit beneath it. It is undisputed that the cord was pulled away from the transformer and the transformer broken at the time of appellant’s fall. If the cord was in its accustomed place under the chair prior to the fall, we find no reasonable explanation for its presence in the aisle. In view of the evidence in the record and the wording of Special Issue No. 1, we think it immaterial whether the cord was in the aisle to the rear of, or the side of, the first dryer chair.

Since under the instructions of the court the jury was not permitted to consider the negligence issues, the answer made to Special Issue No. 9 concerning unavoidable accident would not authorize the rendition of a judgment for appellees.

Since the question of unavoidable accident will probably arise on a retrial of this cause, we have considered appellant’s assignments of error relating thereto. In determining whether or not to submit an issue on unavoidable accident, the rule announced by the Supreme Court in Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790: “ * * * if the evidence does not raise the issue that the something other than the negligence of one of the parties caused the injuries, then it does not raise the issue of unavoidable accident,” must be applied.

Viewing only the evidence favorable to the verdict, we find that appellant testified that immediately before the fall she experienced a pulling sensation on her foot and leg. There was no testimony of slipping or becoming overbalanced. No one else testified as to the cause of the fall. We find no testimony from which an inference of a spontaneous break in appellant’s leg could reasonably be drawn. The trial court erred in submitting the issue of unavoidable accident.

We deem it unnecessary to discuss the other points of error assigned by appellant since they probably will not arise in the event of a retrial of this case.

Reversed and remanded for a new trial.