(dissenting).
Depicted here is one of four similar pictures which the trial court admitted in evidence over objections of appellants as set out in the opinion of Associate Justice O’Quinn.
*883
*884It is my opinion that the trial judge abused his discretion in admitting these photographs in evidence. They were taken lour years after the event. They were based upon the testimony of Mr. Lapinsky, store manager for appellee, that they correctly represented the scene at the time Mrs. Briones fell “as best you can remember as they were that day,” he (Mr. Lapinsky) was “not trying to say this is exactly like it was that day,” he was asked to “put it (the lawnmower) as well as you could, about where it was that day,” that he located the fixtures to the “best of my memory,” that the floor plan was arranged as of the time Mrs. Briones fell “to the best of my knowledge” or “as well as you can recollect” or “as you can recall.”
In its brief appellee states, “The photographs were introduced for the purpose of showing the open and prominent location of the lawnmower, in rebuttal to appellants’ allegations that it was concealed among hanging clothes.”
The protection afforded litigants by the oaths taken by witnesses is worth very little if such material and highly prejudicial evidence as these photographs is admitted on the basis of their verification as attempted by Mr. Lapinsky.
I do not consider the offer made in the progress of the trial to Mrs. Briones’ counsel to go to the store before its 8 p. m. closing and take pictures was a fair offer. It was made at an unseemly time. It did not include permission to arrange the store as it was when Mrs. Briones was injured.
If I am correct in concluding that appellants were entitled to judgment based on the verdict of the jury, then the above error, as I see it, becomes immaterial.
As reflected by the opinion of Associate Justice O’Quinn this case involves the question of whether appellant has shown that appellee was under a duty to protect her from the injury which she received when she stepped back from the merchandise counter and fell on a lawnmower and that this duty was breached. It is the contention of appellee that she did not discharge this burden because the jury having found that the lawnmower was not concealed or hidden from her view by the hanging clothes, merchandise, display racks or tables the lawnmower and its attendant dangers were open and obvious. The jury also found that this lawnmower was so placed “amongst the clothes on a clothes rack” so close to the table where Mrs. Briones was selecting her purchases as to constitute a danger to her. There is no contention that these findings conflict.
My problem is to determine whether the finding that the lawnmower was not concealed or hidden from the view of Mrs. Briones requires us to hold that the lawnmower and its attendant dangers were open and obvious to her. My conclusion is that it does not.
The Supreme Court has held that a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization and appreciation. Wesson v. Gillespie, Tex. 382 S.W.2d 921 (1964).
Since Mrs. Briones did not see the lawnmower, she could not have realized and appreciated the danger attending it. She must be charged, as a matter of law, with knowledge that the lawnmower was where it was and a realization and appreciation of the danger connected with it.
The location of the lawnmower when Mrs. Briones fell backward over it is, in my opinion, determinative of this legal question. If it was where the picture herein shows it to have been, I would have no difficulty in charging Mrs. Briones, as a matter of law, with all the ingredients of “no duty.” See the remarks of Supreme Court Justice Greenhill in Assumed Risk, Baylor Law Review, Vol. XVI, p. Ill @ 118, Southwestern Law Journal, Vol. 20, p. 1 @ 13.
We have findings here that while the lawnmower was not hidden or concealed from the view of Mrs. Briones, it was *885“amongst” the clothes and so located as to be dangerous to her as she shopped.
I would hold, under these circumstances, that since this dangerous condition existed and Mrs. Briones was injured as a proximate result of it that she, as a matter of law, should not be charged with realization and appreciation of the dangers incident to such dangerous situation.
In Rackley v. Model Markets, 417 S.W.2d 89, Tex.Civ.App., San Antonio (1967) n. r. e., the Court reversed a summary judgment for defendant store where a customer fell over a pair of shoes in the aisle the Court saying.
“It cannot be said that the shoes upon the floor were so open and obvious that Mrs. Rackley was charged, as a matter of law, with knowledge and appreciation thereof so as to entitle appellee to judgment under the ‘no duty’ doctrine. Scott v. Liebman, 404 S.W.2d 288, (Tex.Sup.1966); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963). In her testimony, she denied any actual knowledge of same prior to her fall. Furthermore, she testified that she did not see the shoes on the floor because her attention was upon those in the racks at eye level. Under the record before us there is no basis for holding, as a matter of law, that Mrs. Rackley should have anticipated that shoes would be on the floor in tthe aisle.”
These shoes were not hidden or concealed from the customer, yet they were not open and obvious as a matter of law.
Paraphrase the language of Judge Barrow in Model Markets, supra, and substitute “lawnmower” for “shoes” and the analogy is near perfect.
In Price v. Minyard’s Food Stores, Inc., 424 S.W.2d 51, Tex.Civ.App.Dallas (1968) n. w. h., the Court reversed a summary judgment for the stores, saying:
“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 on the other side of the aisle. She had not been down that aisle before on this particular day.”
While Mrs. Price says the box over which she tripped was hidden from view it is apparent that she could have seen had she looked. This, however, did not justify a summary judgment against her.
It is my opinion that the trial court erred in rendering judgment for appellee on the verdict of the jury. I would reverse and *886render judgment for appellants on the verdict of the jury; in the alternative, I would reverse and remand this case.
I,respectfully, dissent.