Murphy v. City of Beaumont, 6943

• Citation: 25 A.L.R.3d 442,420 S.W.2d 459
• Decision Date: 26 October 1967
• Docket Number: No. 6943,6943
• Parties: B. I. MURPHY et ux., Appellants, v. The CITY OF BEAUMONT et al., Appellees. . Beaumont
• Court: Texas Court of Appeals

Page 459

420 S.W.2d 459

25 A.L.R.3d 442

B. I. MURPHY et ux., Appellants, v. The CITY OF BEAUMONT et al., Appellees.

No. 6943.

Court of Civil Appeals of Texas Beaumont.

Oct. 26, 1967.

Rehearing Denied Nov. 15, 1967.

Weller, Wheelus & Green, Beaumont, for appellants.

Keith, Mehaffy & Weber, Benckenstein & Norvell, Beaumont, for appellees.

STEPHENSON, Justice.

This is a suit for damages brought by plaintiffs, B. I. Murphy and wife, Zita Murphy, for personal injuries sustained by Mrs. Murphy when she fell in the Beaumont City Auditorium. Defendants are the City of Beaumont and the Beaumont Music Commission. Summary judgments were granted for both defendants. The parties will be referred to here as they were in the trial court.

Plaintiffs' sole point of error is that the trial court erred in holding that their cause of action was barred under the doctrine of volenti non fit injuria. It is alleged that plaintiffs purchased tickets and were attending a Peter Nero piano concert which was sponsored by the Beaumont Music Commission in the City Auditorium. The undisputed facts showed: That plaintiffs were seated in the lower balcony in the second or third row from the bottom. That the lights came on at intermission and Mrs. Murphy went to the restroom located on the first floor. That when she returned to the balcony the lights were out and Peter Nero was playing the piano. That she fell and was injured as she walked down the stairs toward her seat. That she fell because she could not see.

Mrs. Murphy's deposition showed: That she went to the restroom at intermission. When she returned to her seat the restroom lights were on and the hall lights were on, but upon opening the door to enter the balcony the lights were out in the auditorium. The lights were on on the stage where the artist was playing. Mrs. Murphy's deposition read in part as follows:

'A. It was so dark that I was holding on to the seats as I walked, and I thought I was to the bottom there, and there was one more step.'

'A. I thought I was to the bottom, it was so dark I couldn't see, and I stepped off.'

'A. Well, I was walking down the steps holding onto the side seats there the best I could, kind of leaning as I remembered, and just getting down those steps.'

'Q. And you said you had your hand onto the chairs?

A. As I remember.'

'Q. And you were using them to walk down?

A. I was using them as a guide to get down, looking at the rows as I went down, looking at each step.'

Mrs. Murphy also testified: That she had lived in Beaumont 27 years and probably had not been in the auditorium more than 15 times . That this was the first year she had a card for all of the performances of the Music Commission and the second one she had attended this year. The first time she sat in approximately the same position. She had been in the balcony half of the times she had been in the auditorium. That there was nobody to escort her back to her seat. She did not look for anybody nor call anybody to help take her back to her seat. She was not aware there were ushers with flashlights.

The defendants in this case were under a duty to Mrs. Murphy, as an invitee, to exercise ordinary care to keep the premises in a reasonably safe condition, so that an invitee would not be injured. Assuming both defendants knew that it was not safe for a person to walk down the steps of the balcony in the darkness, then the defendants were under a duty to warn invitees of such danger. It is now well established in this state that such duty does not extend to an invitee who has actual...