Bishops Restaurants, Inc. of Tulsa v. Whomble

1 Mrs. Harold Whomble, plaintiff below, commenced this action to recover damages for bodily injuries received by her on the evening of May 4, 1956, while a patron in the establishment of defendant, Bishops Restaurants, Inc., in Tulsa, Oklahoma. The petition alleges plaintiff pulled out a chair from the table specially arranged for her party of several ladies, then stepped in front of it and proceeded to be seated. While she was in process of sitting down, defendants hostess (co-defendant below) negligently removed the chair from its position directly behind plaintiff. As a result of this act plaintiff fell to the floor sustaining a fractured coccyx (tail bone) and other injuries to her person. An averment is made that defendant, Bishops Restaurants, Inc., owed a duty to see that guests present on the premises were properly seated, and that its hostess, acting as an agent and employee of the establishment, was negligent in carrying away the chair when plaintiff was in the motion of seating herself therein. Defendants answered by general denial, a plea of unavoidable casualty and contributory negligence. After trial resulted in a verdict for defendants, the lower court sustained plaintiffs motion for new trial. From the order granting a reexamination of fact issues, defendants bring this appeal.