Davidson v. Missouri Orpheum Corp.
| Decision Date | 06 April 1942 |
| Docket Number | No. 20053.,20053. |
| Citation | 161 S.W.2d 707 |
| Parties | JOSEPHINE DAVIDSON, APPELLANT, v. MISSOURI ORPHEUM CORPORATION, A CORPORATION, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from Jackson Circuit Court. — Hon. Spurgeon Smithson, Special Judge.
AFFIRMED.
William F. Knowles, Paul C. Sprinkle and Sprinkle & Knowles for respondent.
(1) The court properly sustained the defendant's motion for new trial. Pointer v. Construction Co., 269 Mo. 104, 189 S.W. 805, 809; Peck v. Yale Amusement Co. (Mo.), 195 S.W. 1033; McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W. (2d) 693, 695; Lotta v. K.C.P.S. Co., 342 Mo. 743, 117 S.W. (2d) 296; King v. Ringling, 145 Mo. App. 285, 130 S.W. 482, 484; Hamilton v. Railroad Co., 318 Mo. 123, 300 S.W. 787; Kibble v. Railroad Co., 285 Mo. 603, 227 S.W. 42; Miller v. Schaff (Mo.), 228 S.W. 488, 491; Cadwell v. Mfg. Co. (Mo.), 238 S.W. 415; Mahle v. Terrell, 342 Mo. 15, 111 S.W. (2d) 160; Freeman v. Terminal Railroad, 341 Mo. 288, 107 S.W. (2d) 36; State ex rel. Kansas City Southern Railroad Co. v. Shain, 340 Mo. 1195, 105 S.W. 915, 919; Lamb v. Feehan (Mo.), 276 S.W. 71, 80; Cullison v. Wells, 317 Mo. 880, 297 S.W. 370; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W. (2d) 886; Hogue v. Railroad Co. (Mo. App.), 20 S.W. (2d) 301; Zahner Mfg. Co. v. Hornish, 224 Mo. App. 870, 24 S.W. (2d) 641; Seymour v. Tobin Quarries, 233 Mo. App. 573, 123 S.W. (2d) 628, 630.
Allan R. Browne and K.L. Stockman for appellant.
The court erred in sustaining respondent's motion for new trial and motion in arrest of judgment, because a demurrer to the evidence is not a proper ground for sustaining said motion. 62 C.J. 868, 169, sec. 56, 871, 876; Oakley v. Richards (Mo.), 204 S.W. 505; Petera v. Railway Exchange (Mo. App.), 42 S.W. (2d) 947; Stein v. Buckingham (Mo. App.), 60 S.W. (2d) 712; English v. Sahlender, 47 S.W. (2d) 150; Nephler v. Woodward, 200 Mo. 179; Douglas v. Long, 124 S.W. (2d) 642; Murphy v. Electric (Mo. App.), 241 S.W. 651; Feucht v. Parkview (Mo. App.), 60 S.W. (2d) 663; Capstick v. Sayman (Mo.), 34 S.W. (2d) 480; Moordale v. Park, 41 S.W. (2d) 829; Murrell v. Smith, 152 Mo. App. 95.
This is an action to recover damages for personal injuries alleged to have been suffered by the plaintiff while going to her seat in defendant's theatre building. The cause was tried to a jury, resulting in a verdict for the plaintiff in the sum of $3,000. Defendant filed motion for new trial and the court sustained the motion on the sole ground that defendant's demurrer to the evidence should have been sustained. Defendant's motion to arrest the judgment was also sustained. From such order the plaintiff perfected her appeal to this court. The defendant does not urge any other ground justifying the sustaining of its motion but joins issue with the plaintiff on the one ground assigned by the court.
Plaintiff's petition alleged the incorporation of the defendant and that it operated the Orpheum Theatre at Kansas City; that on or about the 19th day of May, 1940, she was a patron of the theatre, and then charged negligence as follows:
"Defendant negligently failed to provide reasonably adequate lighting under the circumstances, and although defendant undertook to usher plaintiff to a seat and although said usher of defendant was equipped with an electric torch or flashlight, yet he negligently failed to flash the same or light plaintiff to her seat, so that as she was attempting to feel her way to the seat indicated by said usher and in the darkness she tripped over some object, the exact nature of which is unknown to her, and which defendant had negligently allowed to project from and to be under seats where patrons were likely to trip on the same, and fell and injured herself, all because of such negligence of the defendant."
The answer was a general denial, coupled with a plea of contributory negligence, and that the seats and ventilators in the theatre were constructed and in the position required by Section 33-12 of the Building Code of Kansas City.
The evidence discloses that plaintiff and her husband were attending the picture show in defendant's building on Sunday afternoon, May 19, 1940. The picture screen was in the west end of the building. There was an aisle along the south wall, and then a row of seats with about fourteen seats in each row, and then another aisle, which will be called aisle No. 2. Plaintiff and her husband entered the picture show in aisle No. 2 and followed the usher about one-half the distance of the room, where they turned and entered the passageway between two rows of seats. There were two vacant seats or chairs to the south which they intended to occupy. The room was dark and the plaintiff first entered the passageway between the two rows of chairs. What occurred when she went toward the vacant seat, she tells in this manner: Some two or three months after the accident she and her husband went back to the place where she fell to determine what it was her foot struck. They took a flash light and upon examination found, for the first time, the ventilator under the chair, and from that examination they concluded she had struck her foot against such ventilator. It was a mere conclusion. Her husband first testified that the ventilator extended about two inches beyond the line of the legs of the chairs but during the trial he went to the theatre and with a straight-edge tested and found that when the straight-edge was placed against the back of the legs of the chairs it merely touched the nearest edge of the ventilator, and he returned to the witness stand and so testified.
Plaintiff now contends that when she was passing the patron who was seated in one of the chairs and who did not arise or turn her knees to one side, that it was necessary for her to extend her feet forward and under the chair in front in order to pass, and that was the manner in which plaintiff's foot contacted the ventilator. But we must observe here that there was no evidence in the record that plaintiff moved along the passageway in such a manner. Such other facts as are necessary will be discussed in the opinion.
The theory of negligence charged in the petition and submitted in plaintiff's principal instruction is that defendant undertook to usher her to a seat in its darkened theatre and that the usher negligently failed to light the space between the rows of seats she was entering and because of such failure she tripped over a ventilator which defendant had negligently allowed to project from under the seats and where patrons were likely to trip on the same.
Defendant was not an insurer of plaintiff's safety; but was required to use only ordinary care to keep and maintain its premises in reasonably safe condition for its invitees. [Stein v. Buckingham Realty Co., 60 S.W. (2d) 712.]
The evidence is, that what is referred to as the legs of the chairs, are solid boards fastened to the floor and extending upward above the folding part of the chair and with an arm rest at the top. The back of the chair extends above this arm rest several inches. It is undisputed that the ventilators do not extend beyond the chair legs and into the path of a patron going to a seat; and that the backs of the chairs incline backward and if a plumb line is drawn from the top of a chair to the floor the ventilator is 11¾ inches from that line, and the legs of the chairs are 11½ inches therefrom. Plaintiff testified she entered this passageway facing the picture screen and with the front part of her body toward the back of the chairs in front of her; that she was in an erect position as she moved along sideways toward the vacant seat; that she had no recollection of holding to the top of the chairs in front of her. She was looking toward the picture being shown on the screen, and while so moving along her left foot "came in contact with something on the floor" and she fell. Plaintiff's shoes were nine inches long from heel to toe...
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