On the evidence in this case — the evidence was without dispute on all controlling points — did there arise against appellant the inference of negligence as the proximate cause of Mrs. Shivers' injury? Mr. Justice O'QUINN has prepared the opinion of the court answering this question in the affirmative.
On the undisputed facts, it must be said that the construction of the platform and the stools was open and obvious to all who had occasion to use them, and that Mrs. Shivers had used the platform, and at least one of the stools, prior to the time she was injured It must also be conceded that there was no structural defect in the platform, counter, and stools, and that they were all in good repair. The evidence did not raise the issue that the platform and stools "were novel and unusual fixtures," but on the undisputed evidence there were "probably as many as 25" in use in Texas-two in Jefferson County, one in Beaumont and one in Port Arthur. In many other states, the platform and stools constituted an accepted method of installing soda fountains. In so far as they were put in issue by the facts of this case, the platform and stools "were not novel and unusual fixtures" for the reason that Mrs. Shivers had had an opportunity to observe them, and in fact had observed them and used them prior to her injury. On this point, the very fixtures in issue had been in use by appellant in its drugstore in the Goodhue Building for about nine years; almost a million customers had used them, and only one other accident from their use was shown by the evidence. *Page 661
The following legal points advanced by appellant are clearly established as the law of this State: (1) A merchant does not owe to his customers, using his premises, the duty of an insurer; he owes them only the duty to exercise ordinary care for their protection. Worth Food Markets v. Le Baume, Tex. Civ. App. 112 S.W.2d 1089; Graham v. F. W. Woolworth Co., Tex. Civ. App. 277 S.W. 223. (2) Appellees rested under the burden of establishing against appellant the issues of negligence, plead as the basis of their cause of action, as summarized by Mr. Justice O'QUINN. Mauk v. Texas Pipe Line Co., Tex. Civ. App. 93 S.W.2d 820. (3) To establish negligence, appellees rested under the burden of showing that appellant owed them a duty in relation to the matters charged in their petition and that it had breached that duty. St. Louis Southwestern R. Co. of Texas v. Pope, 98 Tex. 535, 86 S.W. 5. (4) Appellees also rested under the burden of showing that appellant should have reasonably foreseen or anticipated that someone would suffer an injury, proximately resulting from the construction and operation of the soda fountain, counter, and stools. Texas P. R. Co. v. Bigham, 90 Tex. 223,38 S.W. 162, 163; City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927. (5) By the opinion of this court in Marshall v. San Jacinto Bldg., Inc., Tex. Civ. App. 67 S.W.2d 372, 374, writ refused, the following proposition of law from 45 C.J. 837, was cited with approval, and constituted the very basis of our judgment:
"The duty to keep premises safe for invitee applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care."
See, also, Texas P. R. Co. v. Howell, Tex. Civ. App.117 S.W.2d 857, where this proposition is cited with approval. We note that appellees say in their brief that the proposition "does not reflect the rule of law as it obtains in Texas, and indeed Corpus Juris cites no Texas case. It is not believed that this Court intended to lay down any such rule, because the matter as quoted from Corpus Juris in that respect is plainly without support in the decisions of the Texas courts."
The controlling force given by this court to the proposition in the Marshall case answers appellees' criticism.
The authorities cited by appellant in support of its motion for an instructed verdict rest upon the fact conclusions both that the construction in issue was open and obvious and also that its proper use and the inherent dangers in its use were open and obvious. In Main v. Lehman, 294 Mo. 579, 243 S.W. 91, 95, the decision rested upon the point that the invitee had full knowledge and information of "the step or other obstruction." In Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72,190 S.E. 354, 355, "the plaintiff was obliged to step up to get on the rostrum." In these cases there was no hidden danger in the situation created by the obstructions. The dangers inherent in the use of the premises were as open and obvious as the obstructions themselves. In the Marshall case, supra, by this court, the granite slab that caused the plaintiff to stumble as he entered the revolving doors had an elevation of 1/4 of an inch above the sidewalk; there was no hidden danger in stepping from the sidewalk upon the granite slab. A person seeing it necessarily knew the dangers of stumbling by tripping the foot against its raised edge.
The rule announced in the cited cases, to the effect that the duty to keep the premises safe for an invitee applies only to hidden dangers, traps, pitfalls and the like, is not only the rule in Texas, but like most rules which have long received the sanction of the American courts, it is, we think, sound in principle. That rule, however, does not deny Mrs. Shivers' recovery in this case. On the facts, her injury did not result alone from the manner of the construction of the stools and the platform, but from dangers inherent in the use which the public was invited to make of them. These dangers were not so open and obvious that a court would be warranted in holding, as a matter of law, that she necessarily knew of them or that appellant was not negligent in failing to anticipate that some such injury as that sustained by her might occur.
This was a soda fountain, constructed and operated by appellant as a *Page 662 place of relaxation; a place of escape from the cares of the daily grind; a place of refreshment for the tired and weary; a place to sit and rest for a few minutes and forget "dull care." Appellant's invitation was: "Come to my soda fountain and drink my coffee and my beverages. Not only is my soda fountain constructed so as to secure your safety, but you will find no hidden danger in its use; you can sit down in safety and get up in safety; you need take no special precaution not required for your safety in the general run of such places, which you have long patronized and to the use of whose facilities you are so accustomed that the manner of such use is with you largely a matter of habit rather than deliberation." Such was the invitation. On that invitation Mrs. Shivers went to appellant's soda fountain, stepped upon the platform and seated herself upon one of the stools. She necessarily saw the raised platform and the general arrangement of the stools. As she sat at the counter and drank her coffee her feet rested upon the platform at a normal distance below the seat of the stool and in as comfortable a position as she would have been in had the stool been sitting on the floor. But the platform was narrow, only 24 inches wide and it was raised 9 1/2 inches above the floor level, or nearly twice the height of an ordinary stair-step. When she had finished drinking her coffee it was necessary for her to pick up the sales ticket and swing around, or partly around, on the stool. The stools were only 11 1/2 inches apart and if those next to her were occupied she would probably experience some difficulty in leaving the counter. The platform immediately beneath her feet and between the stools might easily have been obscured from her view so that she would not see the edge of the platform. It was of glazed tile construction and if she stepped upon the edge it was easy for her to slip and fall as she arose to her feet. Or if she turned entirely around on the stool, her feet would not have come in contact with the platform at all because of the narrowness of it, but she would have stepped directly on to the floor, which was more than 9 inches farther from the seat of the stool than the normal height of such a stool from the floor, a fact which she might at the moment have been justifiably ignorant of. Dropping to the floor that added distance and not finding the floor at the normal distance expected, may have caused her to fall. Mrs. Shivers did not know just what caused her to fall but that she did fall and receive a serious injury is not questioned. It is our view that, under the facts, the issues of whether or not the defendant was negligent and whether or not the plaintiff was guilty of contributory negligence were fact issues for the jury, and that the answers of the jury resolving these issues against the defendant and in favor of the plaintiff have sufficient support in the evidence to sustain them.
That appellant followed an approved method in constructing its soda fountain was merely evidentiary on the issue of whether or not it should have foreseen the injury suffered by Mrs. Shivers. Merchants' Planters' Oil Co. v. Burns, 96 Tex. 573, 74 S.W. 758; San Jacinto Bldg. v. Washington, Tex. Civ. App. 122 S.W.2d 289. The fact that a million customers had used the soda fountain with only one injury reported to appellant was also merely evidentiary on the issues of negligence. San Jacinto Bldg. Co., Inc., v. Marshall, supra.
For the reasons stated, the court did not err in refusing to instruct a verdict in favor of appellant. Except as hereby modified, the opinion prepared by Mr. Justice O'QUINN is accepted as the opinion of the court.