Bergstresser v. Minn. Amuse. Co.

• Decision Date: 05 August 1942
• Docket Number: 8508
• Citation: 68 S.D. 579,5 N.W.2d 49
• Parties: J.C. BERGSTRESSER, Respondent, v. MINNESOTA AMUSEMENT CO., Appellant
• Court: South Dakota Supreme Court

68 SD 579, 5 NW2d 49 (1942)

J.C. BERGSTRESSER, Respondent v. MINNESOTA AMUSEMENT CO.,

Appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Lucius J. Wall, Judge

#8508—Reversed

Davenport & Evans, Sioux Falls, SD

Attorneys for appellant.

B. O. Stordahl, R. G. May, Sioux Falls, SD

Attorneys for Respondent.

Opinion filed Aug 5, 1942; Rehearing Denied Dec 12, 1942

WARREN, J.

Plaintiff brought this action against the defendant who owns and operates a moving picture theater in the City of Sioux Falls to recover damages for personal injuries she alleges to have sustained, while leaving the defendant’s theater, from a fall as she stepped down into the aisle from the back row where she had sat during a theatrical performance. She moved some seven or eight seats toward the center aisle without hindrance as there was no one occupying the seats. In stepping down into the center aisle she slipped, fell down, landing on her left side. She charges that the defendant was negligent in failing to have its theater premises properly lighted and in failing to maintain the floor and aisle of its said theater in a safe condition for the use of plaintiff as a paid patron of said theater. The defendant denied the acts of negligence and contends that the plaintiff was injured through her own negligence. The trial resulted in a verdict and judgment for the plaintiff. The defendant has perfected an appeal to this court from this judgment and the whole thereof.

Appellant urges that the motion for directed verdict should have been granted and that after the receipt of the verdict by the court, the court should have sustained its motion for a judgment notwithstanding the verdict. In support of the non-liability of the appellant it contends that it did not insure the safety of its patrons and that it was only chargeable with reasonable care in the maintenance for the safety of its patrons; that the step from the aisle to the platform where the back row of seats were situated did not constitute a structural defect. It further contends that the true test as to adequacy of the lighting was whether it conformed to practices in moving picture houses generally; that there was no substantial evidence contradicting the positive evidence that the aisle and other lights were on at approximately the time of the accident and that even if the aisle lights were not on at the precise moment of the accident, there is nothing to show that the defendant was responsible to refute the positive evidence that reasonable care was used to maintain a proper lighting system.

It would appear from the record before us that appellant’s contention carries great merit as the evidence does not seem to support the verdict and the judgment.

A review of the evidence indicates the following important facts: Appellant’s theater measures sixty-three feet by seventy-five feet. The interior consists of a main floor and a balcony. The entrance leads in from Phillips Avenue. There are two sections of seats on the main floor divided by a center aisle which is forty-seven inches wide covered by a carpet forty-three and one-half inches wide, leaving a small uncovered portion next to the seats. The space between the front legs of the back row of seats to back legs of the row immediately in front is twenty-three inches. The height of the step at the point adjoining the space between the last row of seats and the next row ahead is three and one-half inches at the front and six and one-half inches at the rear. The lighting equipment on the main floor of this theater consists of 6-watt lights with amber and yellow bulbs. There is one such light on each side of the center aisle at the rear and toward the floor. The beam reflects downward toward the center of the aisle and toward the front of the theater. There is also a smaller light at each side of the theater. On the ceiling at the rear there are eleven lights, one row of six lights being directly above the last row of seats and one row of five lights in the foyer on the ceiling at the rear. There are also two wall bracket lights at the rear and two on the side and six exit lights.

The testimony indicates that the lights are comparable to the lights used by theaters of the same class and type and are the best adaptable to furnish the right balance of light between conflicting necessities which are so patrons can see to move about, so it is dark enough to see the picture and with the lights soft enough to avoid eyestrain. There is evidence to the effect that appellants kept a constant vigilance to maintain this lighting system up to the standard by having employees make frequent inspections.

Respondent arrived at the theater at 2:30 p. m. She entered through the center door, crowded past two men who were occupying the end seats of the last row, taking a seat in the back row seven or eight seats in and to the right of the center aisle; that while walking out she took hold of the back seat and all of a sudden her left heel slipped down and threw her; that the left heel had caught on the edge of the step and she fell down on her left side. She testified that she did not notice any lights. Later she stated that there were no lights, also that it was “awfully dark.” On cross-examination she stated “there were no lights, not a single light in the whole theater.” She testified that there were no lights on when she entered the theater. As to the degree of visibility at the point where she fell, she testified that sitting in the middle of the aisle she could see the step at the edge of the aisle and she could see it distinctly. She admitted on cross-examination that for many years she had rather constantly attended the moving picture theaters and was familiar with the fact that such theaters are always dark when pictures are shown and that this theater was no darker than others she had attended. She had not attended this theater for three or more years but in previous years she had gone there from time to time. Her best recollection was that she had attended six times altogether and that she had always occupied a seat in the rear row. The evidence shows that on previous attendance the structural condition at this place in the theater was identical with that of the time of the accident, the step being there all the time. She testified that she could tell when she got to the rear row of seats by saying, “Oh well you can tell the seats it isn’t that dark.”

A witness for the respondent testified that she occupied one of the rear seats to the left of the center aisle, that it was “semi-dark, quite dark” at the time and that she saw respondent fall. She was asked: “Do you know whether these lights in the aisle were on? A. No, I don’t.” She testified that looking out of the corner of her eye she could see the respondent approaching from across the aisle and distinctly saw her fall. There is evidence in the record that the lights were on some three or four minutes after the accident.

The respondent was sixty-eight years old, her eyesight was such that while she had worn glasses for. a number of years she could knit and crochet and drive an automobile.

Appellant argues that it is not an insurer of the safety of its patrons and its duty was simply to use reasonable care to maintain conditions of reasonable safety, taking into consideration the nature and necessities of the business.

An examination of the authorities indicates that the rule of law establishing the degree of care of a manager or proprietor of a theater to be that of ordinary or reasonable care. The authorities are not unanimous on this point but the weight of authorities seem to indicate that the degree of care required of proprietors or managers of a theater for the safety of its patrons is ordinary and reasonable care. Rosston v. Sullivan, 278 Mass. 31, 179 N. E. 173; Peck v. Yale Amusement Co., Mo. Sup., 195 S. W. 1033; Jennings v. Tompkins, 180 Mass. 302, 62 N. E. 265; Dire v. Balaban & Katz, Inc., 241 111. App. 199; Stokes v. Commerce Realty Co., Tex. Civ. App., 25 SW2d 186; Falk v. Stanley Fabian Corp. of Delaware, 115 N. J. L. 141, 178 A. 740; Hunker v. Warner Bros. Theatres, 115 W. Va. 641, 177 S. E. 629; Richard-Lightman Theatre Corp. v. Vick, 201 Ark. 1001, 147 SW2d 731; Klish v. Alaskan Amusement Co., 153 Kan. 93, 109 P.2d 75; Rynn v. Fox-New England Theatres, Inc., 299 Mass. 258, 12 NE2d 728; Young et al. v. Ross et al., 127 N. J. L. 211, 21 A.2d 762; Johnson v. Amphitheatre Corp., 206 Minn. 282, 288 NW 386; Miller v. Poli’s New England Theatres, Inc., 125 Conn. 610, 7 A.2d 845; Worcester v. Theatrical Enterprises Corp., 28 Cal. App.2d 116, 82 P.2d 68; Coakley v. Dairy Cattle Congress et al., 228 Iowa 1130, 293 NW 457; Welcek et al v. Saenger Theatres Corp. et al., La. App., 5 So.2d 577; Greenfield v. Joseph P. Day, Inc., N. Y. Sup., 33 N. Y. S.2d 91; Interstate Circuit, Inc., v. Le Normand et al., 5 Cir., 100 F2d 160; Hardman v. Stanley Co. of America et al., 125 Pa. Super. 41, 189 A. 886. See, also, Tulsa Entertainment Co. v. Greenlees, 85 Okl. 113, 205 P. 179, 22 ALR 607; Frye v. Omaha & C. B. Street R. Co., 106 Neb. 333, 183 NW 567, 22 ALR 610; Emmons v.Virginia, 152 Minn. 295, 188 NW 561, 29 ALR 863; Demarest v. Palisades Realty & A. Co., 101 N. J. L. 66, 127 A. 536, 38 ALR 357; Carlin v. Smith, 148 Md. 524, 130 A. 340, 44 ALR 203; 53 ALR 863; Waddel’s Admr. v. Brashear, 257 Ky. 390, 78 SW2d 31, 98 ALR 553.

In Rosston v. Sullivan, supra [278 Mass. 31, 179 N. E. 1741, the court in discussing the duties of a theater operator owed to a patron said, and we quote:

“The defendant owed to the plaintiff as an invitee the general duty to use ordinary care and diligence to put and keep his theatre in a reasonably safe condition, having regard to the construction of the place, character of the entertainment given and the customary conduct of persons attending. [Citations omitted.] The invitation extended to the...