(dissenting).
I respectfully dissent.
The majority opinion has sustained Highland Park’s point that:
“The evidence proved conclusively and as a matter of law that the condition of the stairs was so open and obvious that Ruth Parker was charged in law with knowledge and appreciation of whatever danger existed in descending the stairs on the occasion in question.”
It is difficult for me to comprehend how “the condition of the stairs” could be found as a matter of law to be open and obvious at a time when the evidence shows Mrs. Parker was having difficulty seeing them.
In Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), the court said:
“We do not agree. Whether a condition constitutes a danger is a function of reasonableness. That is, if the ordinarily prudent man could foresee that harm was a likely result of a condition, then it is a danger, 2 F. Harper & F. James, The Law of Torts § 27.1 at 1431 (1956); W. Pros-ser, The Law of Torts § 61, at 385 (4th ed. 1971) ...”
In my opinion, the record does not warrant the holding that Mrs. Parker was charged with knowledge and appreciation of the danger as a matter of law.
The majority opinion notes that Highland Park did not file a motion for new trial. In its motion for judgment, Highland Park contended judgment should be rendered in its favor because of the finding of the jury that Ruth Parker had been warned to be careful.
No notice or warning was given by appellant. There is evidence in the record that Mrs. Massey said: “Ruth, be careful.”
In Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940), the court said:
“The terms ‘ultimate issues,’ ‘ultimate facts,’ ‘essential facts,’ ‘essential issues,’ and ‘controlling issues’ are frequently used synonymously. An ultimate fact is one essential to the right of action or matter of defense. If an ultimate fact is involved in a case, which is essential to the claim or defense, and is necessary to form the basis of a judgment, it is the duty of the court to submit such issue for determination by the jury. On the other hand, it is not necessary to submit a special issue where it does not call for the determination of some ultimate fact necessary to form the basis of a judgment, as where it relates to subordinate facts to be considered in determining ultimate facts, and necessarily embraced in the determination of the ultimate fact issue. In other words, only controlling issues should be submitted.”
The appellant is not entitled to judgment on this finding of an evidentiary matter which does not constitute an ultimate issue.
*279In my opinion, the judgment of the trial court should be affirmed.