Osborne v. Loew's Houston Co.

• Decision Date: 04 November 1938
• Docket Number: No. 3369.,3369.
• Citation: 120 S.W.2d 947
• Parties: OSBORNE et al. v. LOEW'S HOUSTON CO.
• Court: Texas Court of Appeals

Page 947

120 S.W.2d 947

OSBORNE et al. v. LOEW'S HOUSTON CO.

No. 3369.

Court of Civil Appeals of Texas. Beaumont.

November 4, 1938.

Rehearing Denied November 9, 1938.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by Mrs. Kate Osborne and husband against the Loew's Houston Company to recover damages for personal injuries. Judgment for defendant, and plaintiffs appealed to the Galveston Court of Civil Appeals, from which court the case was transferred by order of the Supreme Court to the Beaumont Court of Civil Appeals.

Affirmed.

Sewall Myer and Lewis Fisher, both of Houston, for appellants.

Baker, Botts, Andrews & Wharton, of Houston, for appellee.

WALKER, Chief Justice.

In the lower court appellants, Mrs. Kate Osborne, and her husband, were plaintiffs, suing appellee, Loew's Houston Company for damages for personal injuries suffered by her as the proximate result of a fall in the loge section of the balcony of Loew's State Theatre in Houston. From a judgment in favor of appellee, rendered on an instructed verdict, appellants duly prosecuted their appeal to the Galveston Court of Civil Appeals; the case is on the docket of this court by order of transfer by the Supreme Court.

We do not make a statement from the pleadings of the parties; it is sufficient to say that appellants' pleadings support in their favor every inference arising on the evidence. In reviewing the evidence as against the instructed verdict, we recognize that it was the duty of the trial court to accept as true all evidence supporting appellants' theory of liability, and to resolve in their favor every reasonable inference on the evidence, and to give the evidence its strongest probative force in favor of appellants. In due recognition of these fundamental principles, we make the following statement of the facts of the case, questions and answers reduced to narrative:

Miss Billie Russell testified: "On the evening of May 1, 1936, in company with appellant, Mrs. Osborne, and her niece, Miss Harris, I went to Loew's State Theatre on Main Street in Houston. Well, we purchased the tickets for the loges, and, of course, walked up the stairs, and then a boy looked at our stubs. You see, they have two parts upstairs, and he looked at our stubs and then we started searching for seats and Miss Harris was in front of us, Mrs. Osborne and me, and she walked over to one aisle ahead of us, and, as I recall, signaled to us that she had found some seats; it happened to be rather crowded. We walked over to the aisle she was going down; which aisle it was, I don't recall. It was the center aisles in the theatre going down into the loges; I think it was the one on the right. Mrs. Osborne and I, Mrs. Osborne leading, went to the point at the head of the stairs; Miss Harris ahead of us had gone down the stairs two or three steps. Walking down the stairs—the aisle between the seats—Miss Harris discovered three seats and motioned for Mrs. Osborne and me to come to her. As we started to walk down the steps to the loge seats we were seeking, there was not sufficient lights to see the steps. I couldn't see any steps. As a matter of fact, I recall very definitely feeling my way down the steps, a sort of groping around for the seats. It was quite dark in there, I remember; when I get into a dark theatre I feel with my feet, and I remember definitely feeling my way along and that Mrs. Osborne was immediately down in front of me and she was trying to find where the seats were. From the point where we started down the steps into the loge section, I could not see the loge seats. I couldn't tell just where they were. It was so dark down in there, the only way I could tell was to feel my way from seat to seat. I simply groped my way down. Well, as I previously stated, when I get into those dark theatres, and I did on that occasion, in order to avoid falling, I feel with my feet. Some people feel with their hands on the back of the seats. You can do that all right, but you are liable to touch somebody on the head, and I feel with my feet. You could see the heads all over the theatre, but I had to feel along with my feet, because it was unusually dark and I could hardly see Mrs. Osborne in front of me. When Mrs. Osborne fell she was about three steps from me. She was a little ways ahead of me, and was going on down, and I was behind her and she was some two or three steps ahead of me, I would say. The first intimation I had that she had fallen, I heard some sort of commotion, and I started searching for her, naturally, and discovered that she had fallen, and some men were helping her up. She fell on the left side of the aisle by a chair—where the chair was sitting on the left side of the aisle. The chairs at that point are movable and she seemed to have fallen down—the end drops down like this, and she seemed to have fallen down on this corner at the drop-off there. I didn't see just how she fell. There is no railing there to hold to as one goes down those dark steps; it was so dark I do not recall whether or not there was a carpet on the floor. I go to the theatre about once a week. As we started to our seats, the picture was being exhibited and the theatre was dark. I had been in that theatre when it was lighter than it was on that occasion."

Miss Harris testified: "On May 1, 1936, about 7 P. M., my aunt, Mrs. Osborne, and Miss Russell and I entered Loew's State Theatre in the City of Houston. We bought our tickets and went up stairs to the loges, and the theatre was quite crowded and it was very dark, and my Aunt and Miss Russell were behind me and I was looking for seats, and we passed the first aisle and went to the second aisle and I saw some people get up, and I started down the steps and found a seat and motioned them to follow me, that there were two vacant seats. The steps I refer to are the steps that lead down to the loges. I wasn't able to see these steps at all. I had to grope my way down from this landing here by feeling from the back of one chair to the other and easing my foot off of one step to the other. I was not able to see the steps, I just had to grope by feeling my way down. There was a carpet on the floor. The steps down the loges were black; it was so dark I had to put my hand from the back of one chair to the other to feel my way down. We could not see the risers on the steps, but I had to ease my foot from one step to the other. I beckoned to Mrs. Osborne and Miss Russell to follow me down the aisle. I was in front, Mrs. Osborne was behind me, and Miss Russell was behind Mrs. Osborne. Some people got up and left their seats; that was when I beckoned for them to follow me. Mrs. Osborne went down about two steps before she fell. It was not light enough to see how she happened to fall, or what made her fall. I first saw and heard her fall. There were no ushers to assist us in getting down the steps, but at the head of the stairs, on the opposite side, there was an usher who took our ticket stubs, but he did not accompany us down the steps. We did not ask him to accompany us down the steps, nor did we ask for an usher to show us down the steps to our seats. There was no railing along there to assist us as we walked down the steps; I put my hand on the back of each chair as I was going down. The chair Mrs. Osborne meant to take had been moved; when I went to help her, her seat had been pushed back, and she sat down in the place where the chair should have been. All the theatres are dark while the pictures are being exhibited, but some are lighter than others. I had been in the loge section of that theatre a good many times before, and it was lighted just about the same—just about as it was lighted on this occasion. Just about the same as to the dim light that comes from above, but the stairs are as black as night. After you have been in the show 20 or 30 minutes, your eyes become accustomed to that darkness, but the stairs as you go in are as dark as pitch. We were anxious to get our seats and did not wait for our eyes to become accustomed to the darkness. Someone had gotten out of the seat Mrs. Osborne took. Mrs. Osborne was in full possession of her faculties; one of the most active persons I know, and she didn't need an...