*1 695 Thyngs, сontract said said the death at Thyng. Wad Mrs. invalid as 386, 194, W. Watson, 24 S. Tex. 86 kins v. (Tex. Civ. 779; Patillo Baird v. A. 22 L. R. Goff, 813; Tex. 63 v. App.) Jones 24 S. W. 160, Trice, W. 66 S. Tex. 255; Kellett v. 206, Kanaman, Blakeley 53; 107 Tex. v. App. Clark, Civ. 674; 28 Tex. West v. S.W. 1, 215. S. W. appellees’ consideration a careful After rehearing, to in made motion appear erred this court therefrom appellees, judgment adverse rendered things overruled. all motion is thеir
Overruled. CORPORA THEATRES v. PUBLIX
HENRY TION. 10661.
No. Appeals Dallas. Texas. of Civil
Court 4, 1930. Jan. 15, 1930. Rehearing March Denied *2 lowing a for sufficient statement of the case understanding issues discussed: of the Appellant evening performance attended an appellee’s theater, company at young with escort, purchased man as an who tick- price charged ets for them at the performance. They for such build- entered the theater ing, and were escorted an usher to a seat on the lower floor near the rear build- of such approximately ing, and under the front of balcony, building. story or the This second balcony low- was about 20 feet above the Appellant er floor. escort entered and her building p. a short after 6 o’clock time performance proceeded m. for After the had Mary time, girl, Bills, some fell from balcony the body and struck her shoulders, pain- across the neck and fully injuring seriously her. The evi- Mary dence discloses that tered the theater about 4 m. of Lou Bills had en- p. same afternoon, company girl with another they being years age, about her of fifteen about age, therein had remained They entire were in the front time. seated just balcony, row of the above trial, This was not witness at this n thoughit was shown, on the cross-examina- appellant, had tion of that she testified as previous for witness at a city. residing and was now in the companion Her testified at this trial to the ef- immediately from fect the before her balcony, Mary from her Lou Bills arose standing position, and seat in a she was get going Im- a drink of water. mediately witness after this statement purse dropped-, had turned and, recover her 'that doing scream, so, looked while heard rail, saw Lou Bills as she over the given description falling was the below. body Mary Lou Bills very meager, inference from such de- but the falling scription in an out- position, with her hands extended stretched body parallel floor. Another her to the statement as to witnеss corroborated the position falling. it was while Renfro, McCombs, Dallas, Ledbetter & balcony Around the end of there is this for patrons balcony from Thompson, Knight, Baker & Harris and stepping falling off or therefrom. This rail- Dallas, Rembert, appellee. Adair all of base, height ing rests on a. ’the top of floor to the JONES, C. J. inches; of the base is 29 , Henry, Appellant, and that of thе 13. Jean instituted this suit inches inches. aisle, forming County against The width district Dallas in a appellee, court of occupying Corporation, passageway front for those Publix Theatres to re- injuries balcony, damages personal is 17 inches row of seats received cover moving picture attending perform- side of the base. .end the seat while Theatre, building oрerat- testimony the knees of one -a is that Palace ance appel- “crumpling appellee. touch seat” would At the conclusion of down ed people testimony, other returned a There were verdict the base. lant’s num- but row of front in favor show, duly Appellant does not other than that has record the court. ber the struction balcony itsеlf, appeal has rows of seats ten prosecuted to this court. The fol- pleaded by appellant, pleading row, one- but seats to fourteen and half exceptions appellee. floor stricken lower out on filled. three-fourths fairly pleading appears in this that the aisle been to have of the theater filled. substantially width than of less permitted be maintained fall of appears *3 time of at the It that ordinances. part thrilling the of Mary a rather Lou'Bills shown, court, talcing being tes- play all those who The and action of the in the was trial jury eyes giving peremptory the on their minds case from struction in in- and the and had their tified performance by At appellee, scream. the the until arrested favor can be sus- of only theories, wit, time, theater is that tained either raise an on the evidence one of two to that was so darkened lant she had been in appel-- of escort that the that is to the evidence insufficient appellee’s, negligence, after- little time for some of or see her did not seen, that, hurt, and, by was she when if such issue is raised the evidence position” favor, negli- “crumpled-up appellant’s floor. on and in resolved such a gence, law, this proxi- that the not disclose does as a matter of the evidence was not the While only balcony, appellant’s injury. to the mate cause of darkness extended was is such be drawn to that inference case, operator public As the of a theater,, time at the fact that we find as a and performance persons to the invited to mission of which all were up in the Mary seat her from Bills stood Lou payment attend of the ad momentarily purpose balcony, leav- of for the price, appellee charged is with the balcony seat, in darkness. ing was such duty ordinary safety to exercise care cross-examined, appellant was While respond of those who to invitation and at previ- had been a that there was disclosed it performance. every per tend such To such appellee trial, in evidence introduced ous implied by appellee warranty son there is an up- petition, paragraph abandoned from an a thаt such care has been exercised for his previous petition was had. on which safety. duty by appellee A breach of this petition alleged, paragraph in ef- of said This negligence. will constitute If an attendant fect, that, ventila- because of the insufficient performance given to a in its theater should heating negligent control of the and the tion injury proximately resulting receive an such question, on the occasion of the theater negligence, appellee respon would be Mary fainted, ill and was caused to become Lou Bills injured party damages sible to the suffered. When for the to from the caused her fall entered the theater allegation balcony negligence of floor. The to the lower question, on the occksion in was seated respect in this was abandoned by place immediately an usher aat petition this trial was on which the amended had. balcony, appellee thereby the front end of the occupied assured her that the seat could be medical performance In one of the cross-examination of with reasonable safe appellant, shown ty was necessarily called witnesses to herself. This assurance car history physician a implied warranty that such had received ried it the that injury, appellant’s guard her, he understood railing balcony, directly of and that in the over history girl a had fainted that height, from such was of such construction as to up- balcony had fallen of the theater and the on railing and that the aisle next to said was of is It neck and shoulders width, would maintained this his- from whom he received prudent person not ordinarily conducting the tory. same character ditions. under similar business con- ordinarily prudent person always negligence alleged An The i regard safety petition has due provides against for the of othеrs and rail- amended is to the effect that the any occurrence, ing balcony foreseeable too low to consti- around was consequence propably body pre- the natural support of which for the hand to tute a or person. falling, person using would result in to another if a the aisle next vent overbalanced, railing should become appellant’s allegations The effect as to passageway next to the rail- .and the aisle or negligence crowded, is that in a darkened ing not be so narrow a safe exit could balcony, high 29 inches is not of front row of the made one seated -the height, only when an aisle inches balcony, narrow- reason of such railing, wide is maintained to said to be next hеight of aisle and the low reasonably ness railing, occupy- safe for the exit of those passage from the front seat -was ing reasonably consequently seats in the ap- dangerous, that the rendered pellee difficult occupying safe to those seats be- negligence guilty in maintain- railing. proof low and under estab- balcony dangerous ing in such a condi- hеight of lished the and width proxi- tion, that such alleged, of the aisle to and also that falling of Bills Lou mate cause theater and the front row of was dark and the occupied; seats girl, Mary Dallas, Bills, arose from this front Certain ordinances of the prescribing minimum for aisles row of seats to leavé the immediately and that width buildings, public were she rail- thereafter fell over the theaters and other may appellant’s building ing; in- aisle in do the darkness her resulted safety jury. of this fall left to themselves. immediate so with reasonable When the seats on the front row the cony cause and circum- bal- to inference other facts from the pre- occupied, was was Bills Miss of the aisle are the width the case. When. stances screamed, very seеn, passageway mak- had sents a ing one first below after she narrow par- body railing, falling with her inference his exit. person hands outstretched. be the floor and her drawn allel to physician using passageway that there such narrow the dark is true history appellant’s unlikely thrown this that he received would be duty and railing, had fainted reason was effect for which ordinary as to The evidence is silent below. care main- fallen exercise history re- person whom afford tain the 'that would at a in would protection using her ceived. those the narrow *4 disprove ap- passageway. that the conclusion whether seem to in a hazardous pellee As to tíme, respect least suf- was at the and faint at in exercised such carе respect in fact railing of to raise an issue ficient aisle and in the instant case think we thereto, clearly should presents of the doctor if the evidence an issue to to be submitted competent Miss jury to that show as the be considered instruction. question. in on occasion had fainted the Bills The circumstances discussion, From the above it necessari is, question facts and Are these then first that, ly if follows should determine of raise an issue to sufficient negligent appellee that in the manner in negligence? railing, which it maintained the aisle and and aisle and the was caused to here facts that the do believe not of the of We because narrowness application doc permit railing, of the height Bills disclosed of the Miss loquitur. can ipsa question we fall, Therefore res of of whether trine negligence from indulge presumption proximate negligence of of not cause .this accident, injury happening and bur of the to to is an issue of fact the be determined (cid:127) .upon negligence by proving jury. rests such hold therefore den We of person falling giving peremptory of in in that the court erred structions. public an oc following is such theater in sus authorities ordinary happen Avery tain that does this conclusion: v. Port Arthur currence course management (Tex. App.) 578; Purdy things, has used v. if the S. of Civ. 266 W. such, against guard al., 854, ordinary an App. occur W. care to Loew’s 294 et 220 Mo. S. brought 751; Majestic Butz, Ky. occurrence could an Theater Co. v. 210 rence. Such balcony attempt occupant by 92, Durning 17; of the an W. Ella et al. v. Sam 275 S. about Hyman, 376, 568, aisle for darkened ing narrow and 286 uel Pa. A. 53 A. use the 133 to suddenly pre attempt note; 851, Magruder exit, is B. R. v. Columbia and in in such cases cited and railing, Ky. 761, Co., is unable cipitated the in and Amusement 218 292 emergency 341; Interprises, 32 himself Bass v. Southern S. W. to falling being Boeckling 399, 753; App. too of the E. A. on account Ga. G. S. 261, 160 Slattery, purpose. App. in is a reasonable It v. Ohio E. 99. for N. Co. low ference the that from the evidence to be drawn opinion are of that court We also from these resulted of Bills fall Miss exceptions appel sustaining in plea erred to causes. alleging lant’s certain ordinances was warrant in the trial court Before of The aisle was constructed Dallаs. instruction, every pleaded, giving and of ordinances violation therefore admission ed pleading must laid the basis for inference from appellant’s ma of ordinances as evidence been resolved favor. have question appellant’s warranting terial case. The as to that inference pleading to, to whether the sufficient to show is falling if Bills was contributed of Miss any causal connection between the caused, by low narrow aisle and the violation of the ceived is and the re ordinance appellee in its maintained sufficiently discussed heretofore. fact, as to the an issue of it follows stated, fall, For of presented, the reasons above we are which re of her cause opinion jury. should and this case be reversed quired of such issue to the a submission remanded. evidence raise Does Reversed remanded. appellee negligence of its maintenance of at the width shown and the aisle the. at Rehearing. for On Motion It must borne in shown? buildings moving pictures Appellee rehearing, in which mind that has filed motion always earnestly darkened are shоwn are time of in the court erred in this case it is most insisted that duty It reversing remanding such an exhibition. ordinary especially of to exercise care to for a new trial. is a man maintain the aisle insisted that the evidence is insufficient to alleged negli- ner that 'those have occasion to use who raise an issue fact as to out, proximate pointed furthermore, cause tbe gence fainted. We tbe from' jury ; conclusion draw direct onjy evidence as to that tbe tbe girl’s appellee’s result- -falling while she was tended tbe evidence ed from tbe unforeseeable faint- fainted, tbe cause of contradict tbe assertion that she banister, guarding thereby balcony. ing falling over tbe wa.s caused from tbe striking While this evidence аban- contained in tbe tbe front tbe with pleading injuring Tbe earnestness doned is not sufficient to establish presented is, able fall, as a of matter law the contention cause of said wbicb tbis carefully again course, re- us sufficient to an issue of such has caused raise counsel any an- probative conclusions our cause. Was there evidence of record view tbe opinion. original controverting un- areWe force tbis tbe evidence as to tbe nounced able raising agree counsel for cause such gence the fall and tbe issue that record, negli- in tbe legal tbe evidence occurrence was caused tbe tbe and effect ’ opinion. original appellant? to our must adhere liability per elementary Generally, may Ibesaid that such dependent of an injuries law in tbe issue can be raised either direct evi sonal facts; presence arising upon two dence or tbe reasonable inference part Negligence de namely: fendant, (1) tbe a fair deduction from evidence estab setting lishing existing force a harmful facts. An established exist either creating ing ap aisle, space motion, or, condition of narrow in tbe instant *5 proximately occupied by harmful using dangerous ad situation tbe a force injury those jacent seats, safeguarded only by may a foreseeable in motion and set a low results; (2) protecting rail, another could have caused tbe fall original opinion. In the proximately rеsults therefrom. in Hence wbicb instant opinion, evidence, happened in our ference tbis condition is not a tbe because clearly appellee speculation, issue of the raises tbe but mere dangerous creating condition is a fair deduction from established facts. A question resolving trial a fair of tbe aisle court is no as patrons use morе to tbe warranted appellee’s deduction, inference, shall and we or a orig enlarge upon facts, against appel- tbe discussion drawn from lee, established respect. opinion in tbis than would resolv inal warranted so ing any disputed moving other evidence. In sufficient tbe evidence is believe We peremptory instruction, appellee must bе fact, jury, disputed submit to tbe deemed to have admitted all tbe truth of proxi that tbe by appellant. material evidence offered also must be deemed to have appears negligence. As mate result of as a admitted opinion, original conclude we tbe every inference, fairly fact favorable a matter not establish as tbe did evidence reasonably dedueible from If such evidence. girl, falling of tbe law tbe cause of tbe fairly reasonably it is dedueible from tbe in an abandoned is true Bills. Lou case, Mary evidence tbe instant pleading appellant tbis Bills was to fall caused reason stum of. negligence of faint because tbe caused to aisle, bling in darkened and tbe narrow maintaining ventila was unаble low of a herself account cor Tbis tion in theater. guard rail, then such inference must be rectly court, is en the trial admitted trial deemed tbe ad court to been have to be considered with other titled on by appellee present mitted as a fact when it fact issue. went Tbe ed the motion for instruction. issue, and on tbis then tbis second trial do, Tbis trial court tbe did not but have must thereby allegations, tbe abandoned regarded speculation such deduction as mere ground impliedly that established, of re admitted unwarranted from tbe facts. To tbis we covery minds not be to our could agree, could not and hence reversed and re probative of this evidence. weakens the Certainly force manded tbe case. cannot be estab said that tbis rehearing Mary Lou Bills motion for is overruled. as a matter of law that lishes fell because she on tbe occasion Overruled.