Helen S. Strauss v. Lewis Lamark

Helen S. Strauss, petitioner, brought this suit against Lewis LaMark, et al, respondents, to recover for personal injuries alleged to have been sustained when petitioner tripped on an electrical cord in the aisle of a beauty shop owned and operated by respondents. Special Issue No. 1, which inquired whether the cord extended into the aisle, was answered by the jury in the negative. The next five issues were conditioned on an affirmative answer to Special Issue No. 1 and were not answered. These issues inquired whether petitioner tripped and fell on the cord, whether the cord had extended into the aisle for such length of time that respondents knew or in the exercise of ordinary care should have known of it, whether respondents were guilty of negligence which was a proximate cause of the accident, and whether the cord was open and obvious. In response to Special Issues Nos. 7 and 9, the jury found that petitioner did not fail to keep a proper lookout and that her fall was the result of an unavoidable accident. The trial court rendered judgment on the verdict that petitioner take nothing. Petitioner perfected her appeal, and the Court of Civil Appeals held: (1) that the jurys answer to Special Issue No. 1 is contrary to the great weight and preponderance of the evidence, and (2) that the issue of unavoidable accident is not raised by the evidence. On the basis of these conclusions, it entered a decree reversing the judgment of the district court and remanding the cause for a new trial. Respondents then filed a motion for rehearing in which they insisted that petitioner, by failing to object to the conditional submission of Special Issues Nos. 2 to 6, inclusive, had waived her right to have such issues answered by the jury and that the same must now be deemed to have been found by the trial court in such manner as to support its judgment. The Court of Civil Appeals sustained this contention, granted the motion for rehearing, and affirmed the judgment of the trial court. 360 S.W.2d 583.