Bell v. Dorchester Theatre Co.

• Decision Date: 14 January 1941
• Citation: 308 Mass. 118,31 N.E.2d 10
• Parties: BELL v. DORCHESTER THEATRE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 118

31 N.E.2d 10

BELL

v.DORCHESTER THEATRE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 14, 1941.

Exceptions from Superior Court, Suffolk County; Swift, Judge.

Action by Bernice Bell against the Dorchester Theatre Company for injuries sustained in defendant's theater. Verdict for the plaintiff, and defendant brings exceptions.

Exceptions sustained.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

H. F. Tracy, of Boston, and F. D. Branca, of Dorchester, for plaintiff.

E. C. Park, of Boston, and J. A. A. Anctil, of Newton, for defendant.

COX, Justice.

This is an action of tort to recover damages for personal injuries alleged to have been sustained by the plaintiff on December 21, 1935, when she was a patron in the defendant's theatre. There was a verdict for the plaintiff. The exceptions of the defendant are to the alleged refusal of the trial judge to give some of its requests for rulings.

The jury could have found that the plaintiff was rightfully in the defendant's theatre as a patron, occupying the seat that had been assigned to her by an usher; that as she was changing or moving her position in the seat, the back of the seat broke and fell behind her ‘in one piece’ to the floor; and that she was injured. The back, which was of wood, had two claw-like iron braces extending from the frame that holds the rest of the seat. The break, which was in the iron and below the arms of the seat, was ‘rusty and old and dirty.’ The iron piece in question ‘snapped right off, broke right off.’ ‘It was gray where it was broken, except where it looked as if there was another break there,’ and the dust, dirt or rust ‘was right where it broke.’ It could have been found that both braces were broken. There was evidence that the seat was ‘relatively’ new in 1924, that the break in the iron was fresh and clean, and that there was no flaw anywhere in the fracture.

Three of the defendant's requests for rulings are based upon the theory that the seat was broken as the result of the wrongful act of either the plaintiff or someone for whose conduct the defendant was not responsible. But there was no direct evidence that any such conduct caused the seat to break, and we are of opinion that the jury would not have been warranted in drawing any inferences to that effect. At best the evidence went no farther than that in the immediate vicinity of the place where the plaintiff was seated there was some disturbance, there was mumbling and laughing, and some of the young people were ‘fooling’; that there were two young men in back of the plaintiff who were leaning forward and talking to her, but that they were quiet ‘about it’; and that the plaintiff had admitted that some boy seated behind her was teasing her. The assistant manager, who testified to the alleged disturbance, could not say that ‘he saw them personally making a disturbance.’ Upon this record there was no error in the denial of these requests. This is equally true of the refusal to give the twenty-second request, which was based upon the assumption that the jury could find that the break could have been brought about ‘by some mischievous third person.’

The defendant contends that the remaining requests, which were denied, called for an instruction in some form of words that the defendant was not liable for hidden defects in the seat ‘if the defendant neither knew nor could in the exercise of due care have discovered their existence.’ The judge, in his instructions to the jury, nowhere made specific reference to the defect which could have been found to have existed, unless it was in his statement that ‘It is the duty of a defendant operating a theatre, as this defendant was, to furnish seats for persons permitted to occupy them, which seats were reasonably safe; and his failure to do so would constitute actionable negligence, if by reason of these unsafe or defective conditions patrons were injured.’ The jury were told that the burden was on the plaintiff to prove by a fair preponderance of the evidence that the defendant was negligent; that it was not an insurer of the safety of its patrons, but that it was its duty to use ordinary care and diligence to maintain the theatre, its seats and equipment, in a reasonably safe condition, and that if it was aware of any dangers, it had a duty to warn the plaintiff; that it was not obliged to foresee all possible injury that might result to a patron; that the test is, has it used ‘reasonable prudent care, ordinarily reasonable prudent care for the safety of the patrons'; and that its duty was to furnish seats that were reasonably safe. Again the jury were told that ‘Those seats must be reasonably safe, and that obligation is on the defendant to furnish reasonably safe seats. If they fail to do it, it is negligence, If they do furnish reasonably safe seats, then they have met the obligation * * *’; and that the jury would have to determine whether the defendant ‘measured up to the degree of care the law imposes on him, and furnished the ordinary, reasonable, prudent care in the conduct of its business, and in the furnishing of its equipment * * *.’

After a conference at the bench, the following additional instructions were given: (1) ‘If, without action for which it, the defendant, is responsible, a dangerous condition arises, the law holds the defendant responsible for the outcome only if he should fail to take measures to remedy it. It is not liable in such case unless it is negligent in failing with respect to taking the proper action.’ (2) ‘It comes down to the basic principle, what did the defendant do by way of providing an ordinarily safe place for its patrons * * * of which the plaintiff was one; what is the ordinary care that has been given by the defendant is for you to determine on the evidence.’ The first part (1) of these instructions appears to have been based upon the defendant's eighth request, which had been refused: ‘If without action for which it, the defendant, is responsible a dangerous condition arises the law allows a defendant a reasonable opportunity to become informed of the danger and to take measures to remedy it, it is not liable in such cases unless it is negligent in failing to inform itself and to take appropriate action.’ It is to be observed, however, that all reference was omitted to that part of the request that ‘the law allows a defendant a reasonable opportunity to become informed of the danger,’ and that it is not liable ‘unless it is negligent in failing to inform itself.’

This request, which was refused as a whole, appears to have been taken verbatim from statements in Keenan v. E. M. Loew's, Inc., 302 Mass. 309, 311, 312, 19 N.E.2d 37, (see White v. Mugar, 280 Mass. 73, 75, 181 N.E. 725) which are preceded by the following: ‘It was the duty of the defendant, so far as reasonably practicable, to maintain its seat in a reasonably safe condition for the use of the plaintiff. * * * But it was its duty to use reasonable care to discover a concealed danger, if the danger in this case were...