Texas Consolidated Theatres v. Slaughter

• Decision Date: 15 July 1940
• Docket Number: No. 2027.,2027.
• Citation: 143 S.W.2d 659
• Parties: TEXAS CONSOLIDATED THEATRES, Inc., v. SLAUGHTER.
• Court: Texas Court of Appeals

143 S.W.2d 659

TEXAS CONSOLIDATED THEATRES, Inc., v. SLAUGHTER.

No. 2027.

Court of Civil Appeals of Texas. Eastland.

July 15, 1940.

Rehearing Denied September 20, 1940.

Appeal from District Court, Stephens County; B. H. Atchison, Judge.

Suit by Hiram B. Slaughter against the Texas Consolidated Theatres, Inc., to recover damages for injuries allegedly sustained by the plaintiff in a fall on a wooden ramp lying on the floor in the center of an exitway in defendant's motion picture theater. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and judgment rendered for the defendant.

Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellant.

John F. Evans, of Breckenridge, and Levy & Evans, of Fort Worth, for appellee.

LESLIE, Chief Justice.

Hiram B. Slaughter filed this suit against Texas Consolidated Theatres, Inc., to recover damages sustained by him and alleged to be the proximate result of defendant's negligence. The defendant entered a general denial and alleged special defenses. The cause was tried before the court and jury, and, upon the jury's answers to many issues judgment was rendered for the plaintiff. The parties will be referred to as in the trial court.

The correctness of the judgment is challenged by various assignments of error, but the first two are believed to be controlling. These are to the effect (1) that the court erred in not granting the defendant's motion for a peremptory instruction in its favor, and (2) thereafter refusing to grant the defendant's motion for judgment notwithstanding the verdict. A consideration of the assignments of error requires a statement in substance of the nature and origin of the litigation.

The plaintiff alleged that about night on the evening of September 19, 1938, he, in company with his wife and small child, attended the defendant's motion picture show in Breckenridge; that at the end of the show and while proceeding out through the east exitway of the defendant's theater building he stumbled and fell on a wooden ramp or runway which was lying upon the floor in the center of the exitway, thereby seriously and permanently injuring himself in many ways. On this point the plaintiff in his trial pleading (second amended original petition) alleged: "In this connection plaintiff alleges that said wooden runway in which plaintiff stepped was owned by the defendant and was placed by an employee of the defendant, acting in the course of his employment and in the scope of his employment with the defendant, on the floor of said east exit way after plaintiff and his wife and child entered said theater and before the plaintiff stepped into same while leaving said theater." There are other grounds of negligence alleged, such as insufficient lighting and the failure of some employee of the defendant to guard "the east exit way of the theater during the operation of putting up said pop corn machine." The above excerpt from plaintiff's pleading reflects the real basis of plaintiff's alleged right of recovery. Since he seeks to establish such right largely, if not altogether, by circumstantial evidence, we have found it necessary to study the testimony as a whole.

The plaintiff was accustomed to attending this picture show and was familiar with the building. The ramp over which he stumbled was used as a "rest for the pop corn machine" when the latter was stored away and not in use. Its real purpose was to protect the rug or linoleum on which the pop corn machine would otherwise have rested. The ramp was about 30 inches long, about 25 inches wide on the outside, and the two runners were connected with three 1 × 4's. Exhibit 8 in the evidence reflects a picture of the ramp. When not in use it was kept in a little closet to the west of the exitway. When in use it was in a north-south direction with the pop corn popper rolled upon it. The popper was so stored away each night about 9:30.

On leaving the picture show on the night of the alleged accident, the plaintiff started out the east exitway. His testimony is that no employee of the show, or anyone else, was standing about; that on his way through the exit he fell; that the fall was due to his stumbling onto or getting his feet tangled up in said ramp or runway then lying in the center of the exit and which he did not at first discover; that he stumbled practically to his knees and for some distance toward the pop corn machine then at its usual place near the sidewalk; that he recovered himself within a foot or two of the pop corn machine; that at that point his wife helped him up and he looked to see who it was rendering him that assistance; that he then looked back and could see all but one side of the ramp over which he had stumbled; that he also saw a man out on the sidewalk but that he would not say that he was an employee of the defendant.

The plaintiff further testified that he never told Mr. Hughes, the manager of the show, that he had had an accident and that he never told anyone connected with the theater that he had fallen in the exitway as he retired therefrom. That he did not know who put the ramp or runway in the exitway or how it came to be in that position; that he did not mean to tell the jury that any employee put the runway there; that he did not know who put it there; that he did not see anyone take it out of the closet and put it down at the point where he stumbled over it. That while he did not see who put it down, nevertheless he had alleged in his petition that an employee of the defendant placed it at the point where he stumbled over it. He also testified that he did not try to find any employee of the theater the night of the accident and notify him that he had had an accident. That there was no one there to see; that while he did look around, he did not go back on the inside and look for an employee and that he had not tried to do so from the time of the accident until the time of giving this testimony.

It is the testimony of Mr. Hughes, the manager of the theater, that his first information that the accident of September 19, 1938, had occurred was received about October 30 from plaintiff's doctor who was teasing him about some phase of it at a luncheon.

The plaintiff's wife testified, in substance, the same as her husband. She stated that she followed her husband out of the theater; that she did not stumble over the ramp and did not see it. That after he had stumbled she turned around and looked back and saw the ramp "partly in the lobby and partly in the exitway"; that she was right immediately back of him; that she did not go back to examine the nature of the lights, etc. That when she got out of the show there was a boy standing out on the sidewalk close to the pop corn machine, but that she did not see any employee of the theater around there at the time, and she did not know whether the boy standing on the sidewalk was an employee of the theater company or not. There was also introduced in evidence the following allegation from the plaintiff's (abandoned) original petition: "The plaintiff alleges that the defendant, its agents, servants and employees were guilty of negligence in placing said lattice runway at a place where the same would fall to the floor of said exitway or be knocked to the floor of said exitway by some employee of the defendant or patron of its theater." According to the plaintiff's testimony the runway, at the time of the accident, was not in the position to serve the purpose for which it was intended or invariably used by the employees, but was out in the exitway turned in an east-west direction, the opposite direction to which it would have been had it been in the usual place, and in proper position to be used as a rest for the pop corn...