Burke v. State Fair of Texas (93 S.W.2d 765, 1936)

JONES, Chief Justice.

■In a suit instituted in a district court of Dallas county by plaintiffs in error, A. E. Burke and wife, Mrs. A. E. Burke, to recover damages against defendant in error, the State Fair of Texas, for injuries received by Mrs. Burke while attending a ’high school football game at the athletic bowl at Fair Park, judgment was entered on an instructed verdict in favor of the defendant in error, at the conclusion of plaintiffs in error’s evidence. An appeal has been duly perfected, and the following áre the necessary facts: ■

Plaintiff in error’s petition is carefully drawn and the allegations are sufficient to state a cause of action. In brief, the allegations show defendant in error’s connection with the production of the football game and the payment by plaintiff in error (which term will refer to Mrs. Burke, as Mr. Burke did not attend the football game) of the price charged for entrance into the fairgrounds and the additional price for entrance into the athletic bowl. That portion of the petition which alleges negligence is as follows:

“Plaintiff would further show that in the' exercise of ordinary care for her own-safety she was proceeding down an aisle in said stadium or athletic bowl in search of a seat from which she could witness said football game, when suddenly and without warning, from her rear someone came rolling down the steps of said aisle and crashed into said plaintiff, Mrs. A. E. Burke, severely injuring her in the following respects” (here follows description of the severe injury to her leg, which injury is alleged to be permanent).

“Plaintiff would further show unto the Court that there was a stick or obstruction securely fastened to the steps in the aisle of said stadium and in the place provided for the public, and plaintiffs in particular, to walk in search of, seats to witness games produced by the defendant, which said stick protruded above the surface of said steps in such manner as to be dangerous and to cause one to fall and stumble over said stick or obstruction; and that one Sallie Anton, coming down said aisle to the rear and several steps above the plaintiff, Mrs. A. E. Burke, at the time and on the occasion in question, -stumbled over said stick or obstruction and rolled down said aisle, striking the plaintiff, Mrs. Burke, from the rear without warning and causing the injuries to plaintiff hereinbe-fore and hereinafter complained of, and plaintiffs would show that such injuries to plaintiff were directly and proximately caused by the negligence of the defendant in the following respects, and in all and each of them * *

The above allegations of fact are made the basis of the following allegations of negligence:

“(a) In negligently constructing said stadium and said aisle thereof in securely fastening said stick or obstruction thereto so that the same was a rail thereof, so that it would protrude above the surface of said steps in such manner as to cause the public and Sallie Anton in particular, to stumble and fall in said aisle.”

“(c) In failing to keep said aisle in such stadium reasonably safe and free from obstruction for the use of the public in general, and Sallie Anton and the plaintiffs in particular.”

“(f) In failing to supply sufficient ushers for the welfare and safety of the patrons of defendant attending said football game, and for the plaintiffs in particular.

“(g) In failing to keep a proper lookout for obstructions in the aisles of said stadium, and for the safety of defendant’s patrons attending said football game, and the plaintiffs in particular.”

“(1) In failing to provide any ushers at the time and on the occasion in question.”

The undisputed evidence shows that the game was a high school game, and that appellee did not furnish ushers for a high school game in which it was interested; there is therefore no evidence of actionable negligence because of its failure to furnish ushers for the game in question.

On the other grounds of recovery, negligence is alleged: (1) In respect to the faulty construction of the aisle in which plaintiff in error was injured, because the stick or obstruction with which Miss Sallie Anton collided, and which caused her to fall against plaintiff in error, was a part of the permanent construction of the aisle; (2) negligence was alleged because of the failure of defendant in error to keep the aisle in which the accident occurred reasonably safe and free from obstruction. In the discussion, these two grounds of alleged negligence will be considered together.

Miss Anton was the only witness who testified as to any issue of negligence,, and condensed to narrative form, her testimony is: That she was walking down the steps of the aisle in question in order to get a front seat, and when she was about halfway down the steps, her foot caught under a stick, and she fell and started rolling, and rolled down about eight steps, and struck the leg of a woman whom she aft-erwards learned to be the plaintiff in error ; that the stick seemed to her to be stationary; that it did not seem to be pulled out when her foot struck it, or anything like that, but it stayed there; it caught her heel, and she went rolling down some eight or ten steps, when she collided with plaintiff in error. This witness further testified that she was “sure-footed,” was 20 years of age at the time of the trial, and had participated in high s