Andre v. Mertens

Decision Date06 March 1916
Citation96 A. 893,88 N.J.Law 626
PartiesANDRE v. MERTENS et al.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Cornelia Andre, by her next friend, against Frederick Mertens and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Weller & Lichtenstein, of Hoboken, for appellants. Alexander Simpson, of Jersey City, for appellee.

TRENCHARD, J. In this action the plaintiff recovered a verdict for injuries sustained in falling down the stairs of the defendants' moving picture theater, and the defendants below appeal from the judgment entered upon the verdict

The first reason relied upon for a reversal is the denial by the trial judge of motions to nonsuit and for the direction of a verdict in favor of the defendants. Both motions were rested upon the grounds: (1) That there was no evidence of the defendants' negligence; and (2) that the plaintiff was guilty of contributory negligence. We are of the opinion that the motions were properly denied, for reasons we will now state.

Of course, in passing upon motions to nonsuit and for the direction of a verdict, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. So considered, the evidence, when both motions were made, clearly left it open to the jury to find the following matters of fact. On October 27, 1914, at 8 p. m., the plaintiff, a girl 19 years old, went to the moving picture theater, of which the defendants were the proprietors, and paid the admission fee of 15 cents at the window outside. She then went in, passed through the lobby, ascended a stairway leading to the balcony, took a seat, and there remained for one hour and a half. Then, having seen all she cared for, and wishing to depart, she went to the head of the stairway, and, finding that the stairway was unlighted and so dark that she could not see, paused to "feel" her way. Taking a hold of the handrail along one side of the stairway, she proceeded slowly and carefully down the stairs. When she reached a turn in the stairs she lost her footing and fell to the platform below, and thereby was injured. It was also open to the jury to find certain other matters of fact that will be stated in the course of this opinion.

We think the question of the defendants' negligence was for the jury.

The proprietor of a theater conducted for reward or profit, to which the general public are invited to attend performances, must use ordinary care to make the premises as reasonably safe as is consistent with the practical operation of the theater, and, if he fails in this duty, he may be held liable for personal injuries occasioned thereby; and this rule applies to the proprietor of a moving picture show. Owens v. Associated Realties Corp., 81 N. J. Law, 586, 80 Atl. 325; Branch v. Klatt, 165 Mich. 666, 131 N. W. 107, same case after retrial 173 Mich. 31, 138 N. W. 263; Valentine Co. v. Sloan, 53 Ind. App. 69, 101 N. E. 102.

Tested by that rule, it will be seen that in the case at bar the question whether the defendants were negligent in failing to provide a light was for the jury; for the evidence tended to show that the defendants had assumed to provide lights for the stairway, and that...

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46 cases
  • La Sell v. Tri-States Theatre Corp.
    • United States
    • Iowa Supreme Court
    • September 21, 1943
    ... ... v. Tenant Motion Picture Co., 94 N.J.L. 483, 110 A. 911, 912 ... (steps not sufficiently lighted); Andre v. Mertens, 88 N.J.L ... 626, 96 A. 893-895 (balcony stairway not sufficiently ... lighted); Haugh v. Harris Bros. Amusement Co., 315 Pa. 90, ... ...
  • Oakley v. Richards
    • United States
    • Missouri Supreme Court
    • July 5, 1918
    ...of contributory negligence as a matter of law. Nephler v. Woodward, 200 Mo. 179; New Theater Co. v. Hartlove, 123 Md. 78; Andre v. Mertens, 88 N. J. L. 626; Branch Klatt, 131 N.W. 107; Camp v. Wood, 76 N.Y. 92, 32 Am. Rep. 282; Bender v. Weber, 138 Mo.App. 537. (7) There was no error in exc......
  • Clark v. Monroe Cnty. Fair Ass'n
    • United States
    • Iowa Supreme Court
    • February 15, 1927
    ...Mo. 266, 204 S. W. 505;Murrel v. Smith, 152 Mo. App. 95, 133 S. W. 76;Levinski v. Cooper (Tex. Civ. App.) 142 S. W. 959;Andre v. Mertens, 88 N. J. Law, 626, 96 A. 893. Applying these rules to the record before us, we are unable to hold, as contended, that appellant's motion for a directed v......
  • Main v. Lehman
    • United States
    • Missouri Supreme Court
    • June 16, 1922
    ... ... [Valentine Co. v ... Sloan, 53 Ind.App. 69, 101 N.E. 102; New Theater Co ... v. Hartlove, 123 Md., supra; Andre v. Mertens, ... 88 N.J.L. 626, 96 A. 893; Marwedel v. Cook, 154 ... Mass. 235, 28 N.E. 140; Little v. Holyoke, 177 Mass ... 114, 58 N.E. 170; ... ...
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