Davidson v. Missouri Orpheum Corp., No. 20053.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Cave
• Citation: 161 S.W.2d 707
• Parties: JOSEPHINE DAVIDSON, APPELLANT, v. MISSOURI ORPHEUM CORPORATION, A CORPORATION, RESPONDENT.
• Decision Date: 06 April 1942
• Docket Number: No. 20053.

161 S.W.2d 707 JOSEPHINE DAVIDSON, APPELLANT,
v.
MISSOURI ORPHEUM CORPORATION, A CORPORATION, RESPONDENT. No. 20053. Kansas City Court of Appeals, Missouri. April 6, 1942.

Appeal from Jackson Circuit Court. — Hon. Spurgeon Smithson, Special Judge.

[161 S.W.2d 708]

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.

CAVE, J.

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...