Keys v. Alamo City Baseball Co., 10901.

• Decision Date: 19 February 1941
• Docket Number: No. 10901.,10901.
• Citation: 150 S.W.2d 368
• Parties: KEYS et al. v. ALAMO CITY BASEBALL CO.
• Court: Texas Court of Appeals

150 S.W.2d 368

KEYS et al. v. ALAMO CITY BASEBALL CO.

No. 10901.

Court of Civil Appeals of Texas. San Antonio.

February 19, 1941.

Rehearing Denied April 30, 1941.

Appeal from District Court, Fifty-Seventh District, Bexar County; Everett F. Johnson, Judge.

Action by Mrs. Frieda Keys and husband against the Alamo City Baseball Company for injuries sustained when Mrs. Frieda Keys was struck by a baseball. From a judgment for the defendant notwithstanding the verdict, the plaintiffs appeal.

Affirmed.

See, also, Tex.Civ.App., 142 S.W.2d 694.

Sam G. Newton and Van H. Archer, both of San Antonio, for appellants.

House & Irvin, of San Antonio, for appellee.

SMITH, Chief Justice.

This action was brought by Mrs. Frieda Keys (herein referred to as plaintiff) and her husband, M. T. Keys, against Alamo City Baseball Club, a corporation, defendant, to recover damages for personal injuries sustained by Mrs. Keys when she was struck by a batted baseball in the course of a Texas League game being played in Tech Field, operated by the Baseball Company in the City of San Antonio.

The record shows that the plaintiff, forty-two years of age at the time, attended this game in company with her fourteen-year-old son. According to her testimony this was the second baseball game the plaintiff had ever witnessed, the other being one played a few years before in Waco. She testified that she knew nothing of the game or the dangers lurking in and about playing fields. This particular park was equipped with a large area of seats behind the familiar wire screen strung between the grand stands and the playing field, and with a larger area of seats which were not screened off from the field. A large crowd of spectators, attracted by advertised "Ladies Night," attended this game, but did not fill the screened sections, where some 300 or 400 seats remained unoccupied. Patrons of the game had absolute choice between screened and unscreened sections, seats in the former being more expensive than those in other sections. It is in evidence, if it is not so as a matter of common knowledge, and as some courts have held (Quinn v. Recreation Park Ass'n 3 Cal.2d 725, 46 P.2d 144), that some patrons prefer seats from which the view of the game is unobstructed by screens; others prefer screened areas, and pay the additional cost exacted for the privilege of using them.

Before entering the park enclosure plaintiff stepped to the ticket window and said to the clerk, "give me a ticket." She was given one calling for a seat in an unscreened area, which she accepted without complaint or comment. She went with her son into an unscreened section of the grand stands; she saw no vacant seats, but some person familiar with the seating situation, apparently a peanut vendor not connected with the operation of the park, pointed out two vacant seats nearby and plaintiff and her son occupied those seats. Plaintiff knew, of course, that this was an unscreened area.

The accident occurred during active play, in the fifth or sixth inning. At the moment she was struck, plaintiff was paying no attention to the game, or to the players or the ball; her head was turned away from the field and she was looking back and talking to a friend seated several rows back up the incline behind her. At this juncture a batter hit a foul ball which was deflected into the stands, striking plaintiff in the chest and painfully injuring her. Her son, sitting in a seat adjoining hers, but watching the game in front of him, saw the ball coming and "ducked it," thereby escaping injury.

The jury found that while defendant was not negligent in failing to provide a screen or other protective device for that area, it was negligent in failing "to warn (plaintiff) of the danger, if any, incident to sitting in the unprotected area of grand stand," and that this negligence was a proximate cause of her injury; that plaintiff was not negligent in occupying the seat in question, and did not fail to keep a proper lookout, or assume the risk of sitting there; that the accident was not unavoidable.

After verdict, however, the trial judge, upon appropriate motion, rendered judgment for defendant non obstante veredicto. The Keys, plaintiffs below, have appealed.

It will be observed, then, that the jury exonerated both parties from negligence in all respects submitted, except the one finding that defendant was negligent in not warning plaintiff of the dangers incident to occupancy of a seat in the unscreened area.

Now, plaintiff contends, in effect, that she knew nothing of the dangers incident to the game of baseball, and that, therefore, it was the duty of defendant to warn her of those dangers, and the jury found that the failure of defendant to so warn her constituted negligence proximately causing the accident; and, further, that she did not assume the risk. We are of the opinion that both findings are conclusively refuted both by the evidence and by common knowledge, as well.

The questions, as raised here, of the duties and liabilities of operators to patrons of baseball parks and other athletic fields, have never been decided in any Texas case cited by the parties or found by this Court.

Plaintiff has cited many cases, from this and other jurisdictions, but only two of them—Olds v. St. Louis Nat. Baseball Club, 232 Mo.App. 897, 104 S.W.2d 746; Ratcliff v. San Diego Baseball Club, 27 Cal. App. 733, 81 P.2d 625, 627—relate to the peculiar liability to their patrons of operators of baseball parks. And in both those cases the plaintiffs were injured while within screened sections of the grand stands, calling for the application of a rule of liability materially...