At a former day of this court the majority rendered judgment reversing the judgment of the trial court and remanded the cause. The writer entered his dissent to the conclusions and judgment of the majority.
As I am of the opinion that the statement made in the opinion of the majority of this court does not with sufficient clearness reflect the cause as made by the pleadings of the plaintiff and the proof made, I here submit my views as to the proper disposition of the appeal.
On October 24, 1932, J. Weingarten, Inc., was the owner of a department store in the city of Houston, known as store No. 8. Such store was divided into several departments, each separate from the other. None of the employees of one department had any duty to perform in any other department. One of the departments was a space where groceries were kept for sale. This department is what is commonly known as a self-serving store. There was a place marked "Entrance" where patrons of such department were to enter. There was also a place marked "Exit" where patrons were to leave the department. At the place of entrance and exit there was placed a gate made of iron pipe, known as a turnstile gate; the entrance gate was set upon an iron post, and upon a pivot so as that when pressed from the right of the post and pivot it would revolve from the pressure and permit one to enter the grocery department, but it was so constructed as that it would not revolve so as to permit an exit through it. In other words, it was constructed and intended to be maintained as an entrance to the grocery department only, and not as one for an exit from said department. The owner of the store had employees who worked in their respective departments and not in any of the other departments.
On said October 24, 1932, Clarence Latson entered the store, and after making a purchase in the drug department, approached the entrance to the grocery department for the purpose of entering to make purchases of groceries. Just as he sought to enter, the usual movement of the gate was by some one reversed with such force as to cause it to strike him and seriously injure him.
Clarence Latson, on January 23, 1933, brought this suit against J. Weingarten, Inc., to recover for personal injuries, hospital, and medical services. After making necessary formal allegations, the plaintiff alleged that he entered the store of defendant for the purpose of purchasing groceries, food, and toilet articles; that he made a purchase in the drug department of the store where toilet articles and the like are kept and sold; that he then went to the entrance of the grocery department of the store, where groceries were kept and sold, for the purpose and intention of purchasing certain groceries; that in order to enter the grocery department it was necessary for him to pass through a gate constructed of some character of metal, similar in looks to metal pipes, that revolved on a post, and being constructed of heavy material; that such gate might be termed an iron turnstile gate; "that said gate could only operate in one direction unless some character of spring or lock or ratchet is released or changed so as to permit it to operate in the opposite *Page 738 direction; that there were certain designated places for entrance to said grocery department and likewise certain designated places for exit therefrom; that plaintiff proceeded to the proper gate for entrance to said grocery department and was in the act of entering same by means of said gate, when, without any character of warning or notice, a man (his name being unknown) on the other side of said gate and in said grocery department, carrying certain bottles (believed by plaintiff to be milk bottles), with force and speed, reversed said gate by some means unknown to plaintiff and used same as an exit from said grocery department; that plaintiff had every reason to believe and did believe that said gate was used only as designated, for the purpose of patrons of said defendant's store (of which plaintiff was one) and others entering said grocery department, and that same was not permitted to be used, or used, as an exit from said grocery department; that said person so wrongfully using said gate as an exit is believed by plaintiff to be an employee of defendant or authorized by defendant to deliver milk or other articles of food to it"; that the iron bars of the gate struck him on the right leg with terrific force and he was thrown backward. (At this point the nature and extent of his injuries and damages were alleged.) He then alleged that the injuries and damages suffered by him were due to and the direct and proximate result of "the gross negligence and carelessness of defendant, its agents, servants and employees, one or both, alone or concurring; that defendant failed to exercise ordinary care in providing a safe passage for plaintiff into said grocery department, in not maintaining said entrance turnstile gate in such condition that it could not be reversed and used as an exit from said grocery department, in designating said place where plaintiff sought to enter said grocery department as an entrance to same and inviting its patrons to use same, when in fact it could be reversed, and often was, with the knowledge, sanction and consent of defendant, as an exit, all of which constituted gross carelessness and negligence. That defendant was also grossly negligent and careless and failed to use ordinary care in not keeping and maintaining its said premises and said turnstile gate and said entrance into the grocery department in a reasonably safe condition for its customers, patrons and invitees. That said turnstile gate was capable of becoming a dangerous agency or appliance if improperly handled and maintained. That same did become and constitute a dangerous agency or appliance under the circumstances of its use and maintenance. That defendant negligently and carelessly permitted its agents, servants, employees and also other persons to reverse said gate and use it as an exit from said grocery department and to use it in an improper manner, all of which was unknown to plaintiff. That if the accident herein complained of and the resulting injuries to plaintiff did not result alone from the negligence of defendant, its servants, agents and employees, and would not have occurred unless concurred in and contributed to by the acts of a third person, nevertheless defendant is liable therefor as hereinabove pleaded and set forth."
Defendant answered by general demurrer, general denial, and pleading contributory negligence on the part of the plaintiff.
A jury was chosen to try the case, but after all the evidence had been introduced and all parties had rested, upon the motion of defendant the court instructed the jury to return a verdict in favor of the defendant. Upon the return of the verdict as directed by the court, judgment was rendered decreeing that Clarence Latson take nothing by his suit, and that defendant go hence without cost and liability, and that the plaintiff pay all costs of suit. From such judgment the plaintiff has appealed to this court.
By appellant's first proposition it is contended, substantially, that since the undisputed evidence shows that the gate in question was under the exclusive control and management of the defendant, J. Weingarten, Inc., and that the accident in question was such as in the ordinary course of events would not have happened if due care had been exercised, the fact of the injury itself will be deemed sufficient evidence to support a recovery against defendant, in the absence of any showing that the injury was not due to defendant's want of care. Wherefore, this case comes within the doctrine of res ipsa loquitur, and should be governed thereby.
The writer is of opinion that the case as made by the plaintiff's petition does not come within the doctrine of res ipsa loquitur, and that such doctrine is not applicable to the case as pleaded.
Plaintiff by his pleadings alleged specifically all the several acts of negligence on the part of the defendant which he alleges resulted in his injuries. In such case, he cannot invoke the doctrine of res ipsa loquitur, and he cannot make out a prima facie *Page 739 case without proof of the acts or some one or more of the acts of negligence alleged, and that such act or acts were the proximate cause of the accident and injuries. In other words, plaintiff having set forth and alleged specific grounds of negligence on the part of the defendant, which he assigns as the direct and proximate cause of the injuries complained of, cannot now rely upon the doctrine of res ipsa loquitur, as such doctrine in such cases does not apply.
In Lone Star Brewing Co. v. Willie, 52 Tex. Civ. App. 550, 114 S.W. 186, a case in which a writ of error was denied, it being a suit for personal injuries, the court said: "This is not a case where the doctrine of res ipsa loquitur applies; for the plaintiff, having specifically alleged the acts of defendant's negligence cannot make out a prima facie case without direct proof of actionable negligence, but he must prove the acts of negligence which he averred, and that such negligence was the proximate cause of his injuries. Except in cases where the acts of the defendant speak negligence, it cannot be inferred from the mere happening of the accident."
In Davis v. Castile, 257 S.W. 870, 871, by the Commission of Appeals, it is said: "Where specific acts of negligence are alleged as the cause of the accident, the principle of res ipsa loquitur is not applicable, and the plaintiff cannot make a prima facie case without proof of the acts of negligence alleged, and that such negligence was the proximate cause of the accident. Lone Star Brewing Co. v. Willie,52 Tex. Civ. App. 550, 114 S.W. 186 (writ refused); Gulf Pipe Line Co. v. Brymer, 59 Tex. Civ. App. 40, 124 S.W. 1007; Smith v. Pennsylvania R. Co., 239 F. 103, 151 C.C.A. 277."
Other cases stating the rule announced by the cases from which we have quoted are Missouri, K. T. Ry. Co. v. Thomas, 63 Tex. Civ. App. 312,132 S.W. 974; Wichita Valley Ry. Co. v. Helms (Tex.Civ.App.)261 S.W. 225, 227; Davis v. Texas Co. (Tex.Civ.App.), 262 S.W. 129; Cecil Co. v. Stamford Gas Electric Co. (Tex.Civ.App.)242 S.W. 536; Norton v. Galveston, H. S. A. Ry. Co. (Tex.Civ.App.) 108 S.W. 1044.
In the case last cited the court said: "He (plaintiff) chose to particularize the grounds of negligence, and could recover on no others. The character of an action is fixed by the allegations in the pleadings, and not by facts subsequently disclosed by the evidence. Mims v. Mitchell. 1 Tex. 443; Lemmon v. Hanley, 28 Tex. 219; Tinsley v. Penniman,83 Tex. 54, 18 S.W. 718. If plaintiff desired to avail himself of the presumption of negligence arising from the derailment, no matter how caused, he should have pleaded negligence generally, as was done in the cases cited by him."
There is no evidence tending to show that the gate in question as installed was in the intended manner of its use dangerous, and all the evidence shows that if it became dangerous it was because its original and purposed construction was tampered with and changed by some one without the knowledge of any one in authority for the defendant.
I think the judgment of the trial court should be affirmed for the following reasons:
First. There was no evidence that the manager of the store had any notice or knowledge that the gate in question was being used by any one as an exit.
Second. There was no evidence that any employee of defendant reversed the intended movement of the gate at the time of the accident so that it could be revolved by one using it as an exit. The testimony of the plaintiff, that just as he was about to enter the gate he saw a man whom he did not know and did not know whether or not he was a milkman or what he was, who had something which looked like a crate under his left arm, is clearly no evidence that such man was a milkman. Indeed, he does not testify that the man in fact had any kind of crate, and by no means did he testify that he had a milk crate, or that he had any bottles as he alleged. The testimony of Knighton, manager of the store, that milk purchased from a dairyman was brought into the store by some employee of the store, and if there was anybody handling any milk bottles around there, taking them out in crates, it was an employee of the defendant, contrary to the conclusions of the majority of this court is no evidence that the man whom plaintiff mentioned either had a crate or any bottles, or that the man mentioned was an employee of defendant.
Third. The evidence showing that some employees of defendant at some time prior to the accident reversed the movement of the gate in making their exit, without the knowledge of defendant, which did not contribute to the accident, would furnish no cause for holding defendant liable for the accident. *Page 740
Fourth. Because it was shown that the cause of injury alleged and shown was the reversal of the gate as plaintiff attempted to enter through it, and it was shown that the gate was revolved only by one moving it with his hand or body for the purpose of exit or entrance. Under such circumstances, defendant could not as a careful party have reasonably anticipated that the gate would or could have been thrown with such force as to have resulted in the injury alleged by plaintiff or any similar injury.
For the reasons above expressed, I respectfully enter my dissent to the act of the majority in reversing the judgment.