(dissenting).
I respectfully dissent. Plaintiff, Luisa Briones, has lost her case in three courts, each one of which has rendered judgment against her for a different reason. The trial court rendered judgment upon the jury verdict. The court of civil appeals affirmed the judgment for the defendant because it concluded the danger presented by the mower in the aisle was open and obvious. This court has now held that there was no evidence to support the jury finding on special issue number four, which was favorable to the plaintiff. In my opinion, considerable direct evidence and lawful inferences support the essential findings against defendant, Levine’s, and this same evidence defeats Levine’s contention that the danger to which Mrs. Briones was exposed was open and obvious.
The jury found that Levine’s “had a lawn mower on display in the aisle amongst the clothes on a clothes rack and immediately across from a merchandise display table, so close to the said display table as to constitute a danger to customers similarly situated to Plaintiff, making selections from the display table.” The jury found that placing the mower at that place was negligence and a proximate cause of Mrs. Briones’ fall. The jury refused to find that she was contributorily negligent in failing to keep a proper lookout. The jury found that the mower was not concealed or hidden. The trial court made two un-attacked findings, which the undisputed evidence supports: that Luisa Briones received no warning about the mower and she did not know it was behind her when she stepped back from the display table.
This court has concluded that there is no evidence to support the jury’s answer to special issue number four, because there is no evidence that the lawn mower was “amongst the clothes.” However, this is not the real question asked in the issue. The real question was whether or not the mower was placed in the aisle so close to the display table as to be a danger to customers making selections from the display table. The question also described the aisle as one which was formed by a display table on one side and a clothes rack on the other side. There is evidence to support the jury’s answer to the real question asked. Mrs. Briones testified that after making her selection at the display table, “I gave one step backwards * * * I fell on top of the machine.” She was asked how many steps she took and answered, “This foot I moved back, and that is when I fell.”
Mrs. Briones entered the double doors to Levine’s during the daytime on a Saturday. She walked south through an aisle which extended from the door. The aisle from the doorway was formed by movable racks on which wearing apparel was hanging. Mrs. Briones walked some twelve to fifteen feet inside the door and stopped to examine some merchandise on a table. Mrs. Lagunas, a clerk, then approached Mrs. Briones. Mrs. Briones told the clerk what she wanted and the clerk led Mrs. Briones down the first aisle which extended to the west side of the store. That aisle was the place of the accident. The north side of the aisle was formed by a rack on which clothes were hanging. The south or opposite side of the aisle was formed by a table on top of which clothes were displayed. Between the clothes rack and the display table, there was a rotary lawn mower standing in the aisle. The clerk led Mrs. Briones to the south side of the aisle, the location of the display table; and at the west end of that table, Mrs. Briones made her selection, handed it to the clerk, stepped back and fell on top of the mower.
There is other evidence from which an inference can be drawn that the mower was dangerously close to the display table. Mrs. Briones described the aisle. She said, “Yes, it was a real narrow aisle * * * I had to draw my arm in in order to make it through because there was some clothes *12hanging * * * Yes, when I went to the second table I had to hold my arm so I wouldn’t spill the clothing.” This testimony, up to now, has received too little attention from the courts. In reaching its conclusion that the aisle was spacious and wide, this court relies on testimony from defendant’s clerk, defendant’s manager and the staged photos taken four years after the event. The court seems to ignore Mrs. Briones’ testimony quoted above. The jury could rightfully believe Mrs. Briones instead of the defense evidence.
We come now to the other question. Was the danger open and obvious? The court of civil appeals concluded that the danger was not hidden or concealed and, therefore, it was open and obvious. Not so, at all. “Hidden” and “obvious” are at opposite poles. Between them lies a great area of potential negligence. I take it that a storekeeper is under a duty to exercise ordinary care to keep aisles reasonably safe for passage by customers. That is their purpose, and particularly is this true when display counters and racks of clothing are purposely arranged in a manner to draw the customer’s attention. Customers pick up articles of clothing or take them from hangers and frequently step back to hold them up to light and for examination. Customers seldom pivot in place on the ball of the foot upon leaving a counter, and to take “one step backwards” is rather an expected procedure. Customers were expected to stand in front of the display table to make their purchases just as Mrs. Briones did. The object, which it is argued was open and obivous, was behind Mrs. Briones. It was'not an object a shopper would expect to find in the children’s clothing department. Even if Mrs. Briones had turned around before she took one step backwards, the top level of the motor on which she fell may momentarily have escaped her vision since it was no higher than her knees. I find difficulty in holding that an object which a store sets behind the spot where a customer ordinarily will be looking in an opposite direction, is open and obvious. See Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, 630 (1941).
I would reverse the judgments of the courts below and render judgment for plaintiff upon the jury verdict.
STEAKLEY, REAVLEY and McGEE, JJ., join in this dissent.