Tucker v. Loew's Theatre & Realty Corporation

Decision Date01 June 1945
Docket NumberNo. 319.,319.
PartiesTUCKER v. LOEW'S THEATRE & REALTY CORPORATION.
CourtU.S. Court of Appeals — Second Circuit

Archie Weltman, of New York City (Leopold Friedman, Thomas Bress, and Pauline Cohen, all of New York City, on the brief), for defendant-appellant.

William Logan, Jr., of New York City (Hunt, Hill & Betts and Helen F. Tuohy, all of New York City, on the brief), for plaintiff-appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Plaintiff, Madge Tucker, brought this action to recover damages for personal injuries caused by tripping over a worn-out carpet in defendant's theatre. Upon trial, the jury rendered a verdict for $6,000 in plaintiff's favor, and defendant has appealed from the judgment entered thereon by the District Court. It appears from the testimony that on January 20, 1944, at about 9 P. M., plaintiff and a friend, Rosemary White, visited defendant's theatre at 54th Street and Sixth Avenue, New York City. They went upstairs to the mezzanine lounge, when Miss White decided to telephone her mother. The telephone was situated in the powder room. Just beyond the powder room was the ladies' room. The floor of the powder room was carpeted, and two marble steps led up to it from the mezzanine lounge. While Miss White was telephoning, plaintiff went into the ladies' room, got weighed, came out, saw Miss White was still telephoning, and started to descend the stairs to wait for her friend in the lounge. The ball of her left foot was on the top marble step, her heel being on the edge of the carpet. As she started to put her right foot forward to go down to the next step she felt something "like some part of the carpeting" catch her left heel. The forward movement of her body pulled her heel loose from the carpeting, causing her to fall forward down the two steps to the floor of the mezzanine lounge. As a consequence she sustained a fracture of her left leg and other injuries.

The record reveals ample evidence that the carpet where plaintiff tripped was worn, frayed, and loose, and that such condition had existed for a considerable length of time, long enough to have enabled defendant to discover it with the exercise of reasonable care. Sprague, who was plaintiff's original attorney in this case, but who no longer had any interest therein, testified that the "carpet was worn at the place where it ordinarily joins on to the marble step or adjoins the marble step; that that worn condition had completely worn away the binding on the carpet by which it is fastened on the edge, and that the carpet was frayed for a space right in the middle of the stairway, I would say, of around a foot or so, and that this frayed condition left a gap between the carpet and the edge of the marble of about one-half inch." He "also noticed that the pins by which the carpet was fastened to the floor were irregularly spaced, that in some cases there were not pins at all but large headed tacks, and that these were — many of them — loose." Though his observations were made on February 7, 1944, the jury could properly infer that these conditions also obtained on the date of the accident. The depositions of Paul Murphy, manager of the theatre, and Mrs. Elsa R. Traisnel, the matron, in evidence were both to the effect that the condition of the carpet had not changed up to the time of Sprague's inspection.1 And the nature of the defect was such as to support the inference that it must have developed over a long period of time, and that defendant therefore either did in fact notice it soon enough to make repairs or could have done so with the exercise of reasonable care. Moreover, the jury might have inferred notice from the facts that Murphy and Mrs. Traisnel did inspect the carpet and that defendant failed to call to the stand Mary Williams, the theatre's assistant manager, whose duty it was to examine the defective part of the carpet at various intervals through the day.

In addition to this evidence, which made a case for the jury, plaintiff also called to the stand one Bolson, an employee of W. J. Sloane & Co., engaged in the business of cleaning, altering, installing, and repairing carpets for more than twenty years. Bolson testified as an expert as to the condition of the carpet on March 31, 1944, and stated that in his opinion it must have taken at least six months for the carpet to have become thus defective. This testimony was connected with conditions at the time of the accident by Sprague, who also visited the theatre with Bolson and testified that the carpet had changed little since...

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21 cases
  • Colonial Refrigerated Transportation, Inc. v. Mitchell
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 12, 1968
    ...It is therefore the general rule that points not raised and preserved below will not be considered on appeal. Tucker v. Loew's Theatre & Realty Corp., 2 Cir., 149 F.2d 677; Louisiana & Ark. Ry. Co. v. Johnson, 5 Cir., 214 F.2d 290, certiorari denied, 348 U.S. 875, 75 S.Ct. 111, 99 L.Ed. 688......
  • United States v. Bohle
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 2, 1971
    ...284 F.2d 495, 498 (8th Cir. 1960), and Gaussen v. United Fruit Co., 412 F.2d 72, 73-74 (2d Cir. 1969); Tucker v. Loew's Theatre & Realty Corp., 149 F.2d 677, 680 (2d Cir. 1945); but cf. contra Felice v. Long Island R.R. Co., 426 F.2d 192, 196-197 (2d Cir. 1970). See Lyles v. United States, ......
  • Taylor v. Baltimore & Ohio Railroad Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 2, 1965
    ...on the construction of the similar federal act, 28 U.S.C. § 1732, it is not conclusive as to the latter. Cf. Tucker v. Loew's Theatre & Realty Corp., 149 F.2d 677, 680 (2 Cir.1945). We do not consider it necessary to decide that issue. For Dr. Falk's testimony can fairly be read as saying t......
  • Halecki v. United New York & New Jersey SHP Ass'n
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 10, 1958
    ...and remand for a new trial on the issue of negligence. 1 United States v. Miller, 2 Cir., 61 F.2d 947, 949, 950; Tucker v. Loew's Theatre & Realty Co., 2 Cir., 149 F.2d 677, 679; Trowbridge v. Abrasive Co., 3 Cir., 190 F.2d 825, 829; 2 Wigmore, § 561. 2 Leathers v. Blessing, 105 U.S. 626, 6......
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