East Texas Theaters, Inc. v. Swink
177 S.W.2d 195 · Texas Supreme Court · 1944
Facts
H. T. Swink was injured after falling into a pit on a theater stage while following an employee, Billy Fallin, in a dark area. Swink jumped onto the stage after Fallin, who did not warn him of the pit or advise him of an alternative route, despite Swink's questions about the path and lack of light. The jury found both the theater's employee negligent and Swink contributorily negligent.
Issue
Did the evidence and jury findings establish the doctrine of discovered peril, specifically including the element that the defendant's employee discovered the plaintiff's perilous position in time to avert the injury?
Holding
No, the evidence did not raise the issue of discovered peril because the plaintiff's fall was a continuous act, leaving no time for the employee to discover the peril and avert the injury. Therefore, the judgment for the plaintiff was reversed, and judgment was rendered for the defendant.
Rule
The doctrine of discovered peril requires that the defendant's agent actually discovered the plaintiff's perilous situation in time to have averted the injury by using all available means, and then failed to use those means. Without the 'in time to avert' element, the doctrine is not established.
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