Knebel v. Jones

• Decision Date: 10 March 1954
• Docket Number: No. 10206,10206
• Citation: 266 S.W.2d 470
• Parties: KNEBEL v. JONES et ux.
• Court: Texas Court of Appeals

Page 470

266 S.W.2d 470

KNEBEL v. JONES et ux.

No. 10206.

Court of Civil Appeals of Texas, Austin.

March 10, 1954.

Rehearing Denied March 31, 1954.

Coleman Gay, David Tisinger, Austin, for appellant.

Jones, Herring & Jones, Austin, for appellee.

HUGHES, Justice.

Perry L. Jones and wife, Catherine Jones, appellees, sued E. P. Knebel for damages for personal injuries sustained by Mrs. Jones when she was struck by a batted baseball while attending, as a paying guest, a Big State League play-off game in appellant's baseball park, Disch Field, in the City of Austin on September 6, 1951.

Mrs. Jones was injured while seated in the grandstand, her approximate position being shown on the picture inserted below at the point marked 'X':

The view which Mrs. Jones had from her seat looking in the direction of home plate is shown below:

Trial was to a jury which found in favor of appellees and judgment followed the verdict.

The jury found: (1) that appellant was negligent in failing to provide a screen for the area of the grandstand occupied by Mrs. Jones and that such negligence was the proximate cause of the injury; (2) that appellant was negligent in failing to provide any character of notice to indicate what seats in the grandstand were not protected and that such negligence was a proximate cause of the injury; (3) that appellant maintained the protective screen in question in a sagging condition and that such was negligence and the proximate cause of the injury; (4) that, at the time in question, neither of appellees knew or, in the exercise of ordinary care, should have known, that appellee Mrs. Jones was seated in a seat in which she was unprotected by the screen wire; (5) that Mrs. Jones remaining in said seat was not negligent; (6) that the injury in question was not the result of an unavoidable accident; and (7) that $40,000 would compensate appellees for the damages suffered by them as a result of the injury.

Appellant has numerous assignments of error but since we have concluded that assignments one and two complaining of the trial court's action in overruling his motion for an instructed verdict at the close of all evidence and in refusing to grant his motion for judgment notwithstanding the verdict should be sustained it is unnecessary that we mention or discuss any other assignments.

The game was played at night and being a play-off game a larger crowd than usual was on hand. Appellees had attended many games at Disch Field and Mr. Jones knew that the west grandstand in which they were accustomed to sit was not entirely protected by wire netting. The evidence is not entirely clear that Mrs. Jones knew this as she had always sat in a protected area.

Appellees went to the ball park shortly before game time accompanied by three children between eight and eleven years of age. They purchased grandstand tickets and entered the protected section and proceeded to where they were accustomed to sit in such section. They went to the top of the stand looking for seats, and, being unable to find seats proceeded southward, towards first base, and took the first vacant seats. Appellees sat on the second row from the top and the children sat behind them on the top row. The seats were poor, Mr. Jones having to look to the left of a post and Mrs. Jones to the right. Upon taking their seats Mrs. Jones began writing down the lineup as it was being announced over the loudspeaker. Just prior to game time the lights in the grandstand were dimmed so that the illumination there was about half the brilliance of the light of the playing field. Ten players had batted and the game had been in progress about ten or twelve minutes when Mrs. Jones was injured by a foul ball hit off the bat of a righthanded player while batting in the normal batting position at home plate.

Mrs. Jones testified that she never realized she was unprotected; that she had never knowingly sat in an unprotected seat; that she did not know the screen was over only a part of the grandstand because she had never sat that far south; that, having become accustomed to the screen wire, 'It is like looking out a screen window. You get so used to looking out, you are not conscious of it.'; that she would not have sat in an unprotected area if it had come to her attention, and she did not make a knowing choice to sit in an unprotected area; and that she had never allowed any of her family to sit in unprotected areas and would not let her children go to the bleachers with the knothole gang and she would not have taken her children into an unprotected area if she had been conscious of the fact that it was unprotected.

Mr. Jones testified that the roof is a trap; it is the thing that would mislead anybody; you feel like you are in a room because where we were sitting, the roof over the back seat could be touched by standing up, and the roof extends some forty feet or more out over you. Further, he stated the roof is much more noticeable than the screen, because the roof is right over your head and the screen is far out in front of you, beginning where the roof ends; that the screen slants away from you that there was nothing to bring to a patron's attention that that part of the grandstand was unprotected; that he had known for a year or two before that this general area was protected; that in familiar surroundings, seated in the same general area where you always have, knowing that this was a screened area, there is nothing to direct your attention to the fact that you have stepped beyond the protected area; and that 'it was ridiculous to say he would knowingly sit in a place where he would risk his eight year old boy's life, or my wife's, or mine, or any of us.' He further stated that they sought a seat behind the screen or they would not have gone in where they did and struggled through the crowd to find a seat; that they had relied upon the protection of the screen in the past; that on this particular evening they were sitting in the same general area; and that they were not conscious of the fact that the screen upon which they had relied in the past did not extend to the seat occupied by Mrs. Jones.

The portion of the west grandstand in which appellees were sitting was not a part of the original construction but was added in 1949. This new section contained 1,100 seats measuring each seat to be 18 inches and this section was not protected by screen wire. The old part of the grandstand had 2,377 seats 18 inches wide, excluding box and reserved seats all of which were protected by screen wire. On the night in question 1,939 grandstand seats were sold. Children 8 years old and under are not charged for admission and the number of such children then present is not shown. Neither does the evidence show how many of the 1,939 grandstand patrons sat is the protected area or in the unprotected area. The evidence does show that both areas had occupants.

The grandstand area along first base line which was protected by screen wiring, as measured from home plate, extended 42.5 feet to the point where the top of the screen meets the roof of the grandstand and 49 feet to the point where the bottom of the screen is fastened.

Regarding the amount of screen at Disch Field Mr. B. A. Falk, baseball coach at the University of Texas and former Major League baseball player,...