Cassanova v. Paramount-Richards Theatres, 37048.

• Court: Supreme Court of Louisiana
• Citation: 204 La. 813,16 So.2d 444
• Decision Date: 13 December 1943
• Docket Number: 37048.
• Parties: CASSANOVA v. PARAMOUNT-RICHARDS THEATRES, Inc., et al.

16 So.2d 444

204 La. 813

CASSANOVA
v.
PARAMOUNT-RICHARDS THEATRES, Inc., et al.

No. 37048.

Supreme Court of Louisiana

December 13, 1943

Rehearing Denied Jan. 3, 1944.

[204 La. 815] Cabral, Courtin, Muller & Herman, of New Orleans, for plaintiff.

Rosen, Kammer, Wolff, Hopkins & Burke, of New Orleans, for defendants.

FOURNET, Justice.

The plaintiff, Mrs. John Cassanova, instituted this suit against the Saenger Theatre and its insurer, the American Mutual Liability Insurance Company, to recover from them, in solido, damages in the amount of $25,000, for injuries sustained by her while she was descending the aisle-stairway in the [16 So.2d 445] [204 La. 816] theatre's balcony on her way out after viewing the picture when her right foot went into a space between the end standard of the seats in row 'D' and the edge or end of the step, which space, because of defective lighting and construction, she claims constitutes a 'foot trap.'

In their answer the defendants, for lack of sufficient knowledge, denied that the accident had occurred as alleged by the plaintiff and, since no report was made to any of the theatre's employees on the night in question, infer that the accident did not, in fact, occur in the theatre. Further answering the defendants averred that the entire theatre, including the lighting system, was designed by an experienced architect, and denied that anything in the design, construction, or lighting of the theatre was defective or improper, their special defense being that the thousands of patrons who had used these same aisle-stairways since the theatre's construction without harm was proof that the stairway and the seating arrangement in the balcony was safe. In the alternative they pleaded the contributory negligence of the plaintiff.

On the issues as thus made up the trial judge concluded that the open space between the end of the row of seats and the edge of the step constituted a hazard and that the operators of the theatre were negligent in not closing it up so that the stairway would be safe for its patrons, being of the opinion that because of the darkness of the theatre the plaintiff could not have been aware of the danger lying in this open space, which he characterized as a 'trap,' and, consequently, was not at fault, for 'she had [204 La. 817] a legal right to presume that (the) stairway was safe and free from hazard of this nature and character.' He rendered judgment in favor of the plaintiff and against the defendants, in solido, in the sum of $6,000.

The Court of Appeal for the Parish of Orleans readily concluded that the plaintiff was injured in the theatre on the night in question but reversed the judgment of the district court and dismissed the plaintiff's suit, primarily because the theatre had been constructed by an experienced architect of recognized ability who testified the design, construction, and lighting system used in the balcony was in accordance with the standard used in the theatres of the same size and type, and because the manager of the theatre testified that during the fifteen years since its construction no complaint had ever been made of a similar accident, the court's conclusion being that any defect in the construction of the aisle-stairway or the lighting system, if such existed, 'does not present a danger sufficiently apparent to justify the conclusion that it is negligence to fail to eliminate it,' commenting that while it is possible for the foot of a patron to get into this space, 'such an occurrence can only take place under most unusual circumstances.'

The evidence of the lack of accidents similar to the one plaintiff is complaining of, which so greatly impressed the Court of Appeal and upon which it rested its decision to a large extent, was objected to by counsel for the plaintiff on the ground that it had no relevancy in so far as the plaintiff's accident was concerned, but the court allowed the testimony [204 La. 818] in the record for whatever effect it might have.

Almost all courts admit evidence of prior accidents for the purpose of charging the owners or managers of buildings and premises with notice of defects or physical conditions which are dangerous (Park Circuit & Realty Co. v. Coulter, 233 Ky. 1, 24 S.W.2d 942; Galveston Theatres v. Larsen, Tex.Civ.App., 124 S.W.2d 936; Linneen v. City of Chicago, 310 Ill.App. 274, 34 N.E.2d 100; District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618; Small v. Pennsylvania R. Co., 65 App.D.C. 112, 80 F.2d 704; 45 C.J. 1246, �� 810, 811, and 813; and the annotation at 128 A.L.R. 595), but, 'Whether it is competent in a negligence action to show that other injuries have not occurred is a question upon which the courts are disagreed. According to the rule laid down by many (and apparently the majority) courts, the absence of other accidents at the place of an alleged defect is not admissible for the reason that such evidence not only raises collateral issues, but has no reasonable tendency to prove that such place of injury was free from danger. (Nave v. Flack, 90 Ind. 205, 46 Am.Rep. 205; Branch v. Libbey, 78 Me. 321, 5 A. 71, 57 Am.Rep. 810; Anderson v. Taft, 20 R.I. 362, 39 A. 191; Fox Tucson Theatres Corp. v. Lindsay [47 Ariz. 388], 56 P.2d [183], 185; Crouse v. Stacy-Trent Co. [110 N.J.L. 124], 164 A. 294; Bobbink v. Erie R. Co., 75 N.J.L. 913, 69 A. 204; Carty v. Boeseke-Dawe Co., 2 Cal.App. 646, 84 P. 267; Mobile & O. R. Co. v. Vallowe, 214 Ill. 124, 73 N.E. 416; Temprance Hall Ass'n v. Giles, 33 N.J.L. 260; Park Circuit & Realty Co. v. [204 La. 819] Coulter [233 Ky. 1], 24 S.W.2d 942; Jenson [16 So.2d 446] v. S. H. Kress & Co., 87 Utah 434, 49 P.2d 958; Lucia v. Meech, 68 Vt. 175, 34 A. 695.) Others take the position that the fact of freedom from prior accidents tends to show reasonable safety or reasonable care in a sufficient degree to warrant admissibility of that fact in evidence, although it is by no means conclusive.' 38 Am.Jur. 1014, Section 315. (Parentheses ours.)

Our attention has not been called to any case where the admissibility of such evidence has ever been squarely presented to and passed upon by this court. While the court in the case of Givens v. De Soto Building Co., 156 La. 377, 100 So. 534, 536, relied on by the defendants, did apparently take such evidence into consideration and during the course of the opinion say that it had been shown 'that many thousands of persons have entered and left this theater without another person having suffered a fall. Things were therefore apparently safe,' no objection had been raised to the admissibility of such evidence and the question of its admissibility was not otherwise urged in the case. The issues presented for the court's decision in the Givens case were whether the placing of seats on a platform elevated about eight inches above the aisle in the balcony constituted faulty construction and whether the lights furnished by the operators were insufficient for the plaintiff to see this change in floor levels, and the court squarely held that the complained of construction was not defective per se and that there was sufficient light to apprize the plaintiff of the elevation of this platform above the aisle level, concluding that they [204 La. 820] could 'see no reasons why she should not have seen the step-down where she fell, had she been looking at the time.'

We think the better rule is that such testimony should not be admitted. Once the defendant is permitted to put in such testimony, the plaintiff is necessarily entitled to rebut the same by showing, if such evidence is procurable (which is unlikely since, of course, such evidence is almost wholly within the knowledge of the defendant), that such previous accidents did occur. This can but lead to complications and the raising of numerous collateral issues, for the defendant would next desire to show that such previous accident had been due to the negligence or want of care on the part of the injured person and not to the defective condition complained of and the plaintiff would then seek to rebut such testimony, ad infinitum. As was very aptly pointed out in the case of Anderson v. Taft, 20 R.I. 362, 39 A. 191, 192: 'Apart from the consideration that other accidents would be res inter alios acta to the plaintiff, it is apparent that such testimony, could the parties be prepared to meet it, might introduce into the case numerous collateral issues bearing only remotely on the main issue, which would tend to greatly protract the trial, distract the attention of the jury from the issues involved in the suit, and impose great and unnecessary expense on the parties.' See, also, the other authorities cited above in support of the majority view.

Although the proprietors of places of amusement that are operated for profit are not generally considered to be insurers [204 La. 821] of the safety of their patrons (Miller v. Poli's New England Theatres, 125 Conn. 610, 7 A.2d 845; Olsen v. John Hamrick's Tacoma Theatres, 9 Wash.2d 380, 115 P.2d 718; Haugh v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145; Givens v. De Soto Bldg. Co., 156 La. 377, 100 So. 534; Fox Greater Theatres v. Labriola, 110 Colo. 329, 134 P.2d 214; Dahna v. Clay County Fair Ass'n, Iowa, 6 N.W.2d 843; Hickey v. Fox-Ozark Theatres Corp., 156 Kan. 137, 131 P.2d 671; and Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858), they are, nevertheless, charged with the same duty imposed upon the owners or occupants of a building or premise who either directly or impliedly invite or induce others to enter therein, that is, the affirmative duty to use reasonable and ordinary care to keep such building or...