Stokes v. Commerce Realty Co., 8300.

• Citation: 25 S.W.2d 186
• Decision Date: 08 January 1930
• Docket Number: No. 8300.,8300.
• Parties: STOKES v. COMMERCE REALTY CO. OF SAN ANTONIO.
• Court: Court of Appeals of Texas

Page 186

25 S.W.2d 186

STOKES v. COMMERCE REALTY CO. OF SAN ANTONIO.

No. 8300.

Court of Civil Appeals of Texas. San Antonio.

January 8, 1930.

Rehearing Denied February 26, 1930.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Mollie E. Stokes and husband against the Commerce Realty Company of San Antonio. Judgment for defendant, and the named plaintiff appeals.

Affirmed.

Gaines, Gaines & Roberts and Quinn & Harley, all of San Antonio, for appellant.

Templeton, Brooks, Napier & Brown, of San Antonio, for appellee.

SMITH, J.

Mrs. Mollie E. Stokes, hereinafter referred to as appellant, joined by her husband, brought this action for personal injuries against the Commerce Realty Company as operators of the Aztec Theater in San Antonio, alleging that as a theater patron, and while descending the stairway leading from the mezzanine to the street floor of the theater, she stepped upon a "round hard substance" on the stairs and fell, breaking her leg and receiving other injuries. A jury trial resulted in a judgment in favor of the realty company, and Mrs. Stokes has appealed.

In her brief appellant summarizes her pleadings as follows: "That the cause of the fall was the insufficient lighting of the stairway provided by the theatre company as a means of reaching the mezzanine floor and the upper floors of the theatre building; that in descending the stairs she stepped on a hard, round substance which rolled under foot and caused or contributed to the fall; that if the lighting facilities had been sufficient she could have seen and avoided stepping on this substance, and charging negligence on the part of the theatre company in insufficiently lighting the stairway and in not properly providing attendants to see that substances of the kind and character contributing to her fall were not left on the stairways and floors and in not generally and properly supervising the theatre and seeing that the lights provided for the purpose were not at all times kept burning and the stairways made safe for patrons who were invited to attend such theatres and to purchase tickets of admission thereto."

The jury found, in response to special issues submitted to them: (1) That at the time of the accident there was no "round hard substance lying on the stairway" of the theater, and appellant did not slip or fall on such substance; (2) that appellee was not "negligent in respect to the sufficiency of the lighting" of the stairs; (3) that in descending the stairway appellant failed to "use ordinary care in watching where she was going and keeping a proper lookout ahead of her," and that this failure directly contributed to the accident; (4) that the accident was unavoidable. A number of secondary issues were submitted to the jury to be answered by them in the alternative and only in the event their answers to the main issues were contrary to those returned; but the jury nevertheless answered them, unnecessarily, it is true, but consistently with their answers to the material issues. We conclude that the jury findings were supported by the evidence, and are therefore binding upon this Court.

It was alleged by appellant in her petition that appellee negligently failed to perform its "specific and...