Buck v. Miller Amusement Co., Inc.

• Decision Date: 30 November 1948
• Docket Number: 37313.
• Citation: 166 Kan. 205,200 P.2d 286
• Parties: BUCK v. MILLER AMUSEMENT CO., Inc.
• Court: Kansas Supreme Court

200 P.2d 286

166 Kan. 205

BUCK v. MILLER AMUSEMENT CO., Inc.

No. 37313.

Supreme Court of Kansas

November 30, 1948

Appeal from District Court, Harvey County; George L. Allison, Judge.

Action by Jane Buck against the Miller Amusement Company, Inc., to recover for injuries sustained in a fall in defendant's theater. Judgment for plaintiff and defendant appeals.

Judgment affirmed on condition of plaintiff's consent to reduction thereof, otherwise reversed for a new trial.

Syllabus by the Court.

1. The question of negligence is one for the jury where plaintiff, a patron of a movie theater, was injured through a fall occasioned by a five-inch step-down concealed by a closed door opening inwardly toward the step-down, which door carried no warning of change in level between the main floor and the floor of the restroom which plaintiff sought to enter.

2. An invitee who is about to enter a restroom maintained by a movie theater for its patrons is not bound to anticipate a step-down behind closed door to such room.

3. As a matter of law, one is not guilty of negligence who does not look for danger where there is no reason to apprehend any.

4. Under the circumstances set forth in the opinion, a verdict for $6,000 in favor of plaintiff injured by a fall in a movie theater is excessive.

J. B Patterson, of Wichita (A. W. Hershberger, Richard Jones and Wm. P. Thompson, all of Wichita, on the brief), for appellant.

Bernard Peterson, of Newton (J. Rodney Stone, of Newton, on the brief), for appellee.

COWAN Justice.

This appeal arises by reason of a verdict of $6,000 in favor of the plaintiff and against the defendant because of a fall of the plaintiff on November 22, 1945, as she was entering a ladies restroom at defendant's movie theater in the city of Newton. The plaintiff, as a patron, was attending a performance at the defendant's movie theater. The parties will be referred to as they appeared in the court below.

Plaintiff approached the ladies' restroom of defendant's movie theater. The door to this restroom was hinged on the left side with the knob on the right side. The door opened inwardly toward the restroom. The evidence discloses that the lobby floor projected on a level for about five or six inches beyond the door. Then there was a drop of five inches to a platform three feet square and to the right of the platform was another step-down of about five inches to the level of the restroom floor. A partition wall three feet from the door prevented forward progress of one entering the restroom and required a turn to the right. On this partition wall was a sign, 'Step Down', with an arrow pointing to the step. This sign was in block lettering about eight to ten inches high. There was no warning of any kind on the door. Plaintiff testified that she approached the door to the restroom, took hold of the doorknob with her left hand, opened the door, took a step forward and fell; that from this fall she suffered injuries to her right knee, right hip and right wrist. The jury returned a general verdict in favor of the plaintiff and fixed the amount of recovery at $6,000.

In answer to a special question the jury found defendant guilty of 'failure to post warning of step-down before the entrance to Ladies' Rest Room.' The jury, by its answers to special questions, divided the amount of the verdict into the following elements: $1,500 for pain and suffering; $500 for temporary disability; and $4,000 for permanent disability.

The defendant demurred to plaintiff's evidence; filed a motion for judgment notwithstanding the verdict, and motion for a new trial. All of these were overruled. Defendant really raises but three questions, namely: (1) That there was no evidence establishing negligence on the part of the defendant other than that which might arise by conjecture and speculation; (2) Plaintiff's testimony showed that she failed to use any care whatever for her own safety; (3) The verdict is excessive. While plaintiff alleged other grounds of negligence not found by the jury, we need not consider such other grounds, as the special verdict of the jury limits plaintiff's right of recovery to the single basis of negligence, namely, failing to place a warning sign on the door.

The duty owed patrons of theaters has been established by this court. In the case of Hickey v. Fox-Ozark Theatres Corp., 156 Kan. 137, 131 P.2d 671, it was said 'Proprietors of places of public entertainment or amusement are not insurers of their patrons, against injury, but are only chargeable with such care as is reasonable under the circumstances.' (Syl. 1.)

In Mills v. City of Wichita, 146 Kan. 772, 73 P.2d 1054, where a step-up at the municipal airport caused an injury, a number of cases from other jurisdictions are reviewed. An analysis of these authorities shows that a step-down or a step-up, in a public building, does not in and of itself constitute negligence.

Was there anything else in this case which constituted negligence? The lobby was dimly lighted but the interior of the restroom was well illuminated. The evidence does not show how far the plaintiff opened the door nor does it show that she could have seen the sign on the partition wall inside the restroom when she had opened the door in order to take the forward step. The plaintiff was a large woman, and defendant says that she must have opened the door a considerable distance to have permitted her body to pass through. This does not necessarily follow. She might have stepped forward with her right foot and lost her balance before her body had fully entered the opening and before enough of the sign was disclosed to warn her before her momentum carried her forward and down. Defendant insists that plaintiff was guilty of negligence...