Dalton v. Hooper

168 S.W. 84, 1914 Tex. App. LEXIS 1119, 1914 WL 68

• Court: Court of Appeals of Texas
• Decided: June 13, 1914
• Docket: No. 7165.
• Status: Published

Opinion

RAINEY, C. J.

This is a suit to recover damages from the controllers and managers of the Orpheum Theater for personal injuries received by Mrs. J. D. Hooper while a patron of said theater in descending a flight of stairs leading from thé gallery; her shoe catching on a projecting iron or brass strip on one of the steps, whereby she was thrown and injured. Defendant pleaded the general issue. A trial resulted in a verdict and judgment for plaintiffs, from which this appeal is prosecuted.

The Reason for Reversing.

[1] One complaint by appellants is that the court refused to give their requested charge No. 3, which is as follows:

“Unless you find and believe that the stairway ■herein referred to was defective as alleged by plaintiff, and that such defect, if any, was brought to the notice of defendants or their agents or employes, before the accident herein complained of, or had existed for such a length of time that by the exercise of ordinary care the defendants or their agents or employes would ■have discovered such defect, if any, then your verdict must be for the defendants on this issue.”

This charge should have been given. The court’s charge only in a general way submitted to the jury the duty of appellants to use care to prevent injury to appellee, while the special charge presented an issue raised by appellants’ evidence and called special attention to a phase of the case to which appellant was entitled. Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139; Butcher v. Hyde, 152 N. Y. 142, 46 N. E. 306.

[2] Appellee’s evidence shows that while visiting the Orpheum Theater for the purpose of attending a performance there, and after having paid an admission fee, in descending a stairway her foot caught on a projecting metal strip that was fastened to one of the steps, and caused her to fall, and she was injured thereby. While the appellants were not insurers against accidents to the patrons of the theater, yet they owed to them the duty to exercise reasonable care to keep their place of amusement in a safe condition for the use of their patrons. It is their duty to make proper inspections to see that the place is in proper condition to avoid injury. In this case there was proof to show inspection, and whether the projecting metal strip' that caused appellee to fall was known to be in that condition, or should have been known to appellants, by reasonable care, a sufficient length of time before the accident to have been repaired by appellants, was a question for the jury’s determination.

Eor failing to give the special charge No. 3 requested by appellants, the court committed error, and the judgment is. reversed, and cause remanded.