Fox Greater Theatres, Inc. v. Labriola, 15279.

• Decision Date: 01 February 1943
• Docket Number: 15279.
• Citation: 134 P.2d 214,110 Colo. 329
• Parties: FOX GREATER THEATRES, Inc., v. LABRIOLA.
• Court: Colorado Supreme Court

134 P.2d 214

110 Colo. 329

FOX GREATER THEATRES, Inc., v. LABRIOLA.

No. 15279.

Supreme Court of Colorado

February 1, 1943

Rehearing Denied Feb. 23, 1943.

In Department.

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Action by Ann Labriola against Fox Greater Theatres, Inc., to recover for injuries sustained in a fall through a theater door. To review a judgment for plaintiff, defendant brings error.

Wolvington & Wormwood, of Denver, for plaintiff in error.

Harry G. Saunders and Joe D. Neff, both of Denver, for defendant in error.

BURKE Justice.

These parties appeared in reverse order below and are hereinafter referred to as there, or as the company and Ann respectively. The company operates the Tabor Theater in Denver. Ann, as a paying patron, attended an evening picture show there. On leaving she fell through a side door and was injured. Charging the company with negligence she sued for damages. It denied liability and alleged contributory negligence. A jury was waived and trial had to the court. To review a judgment entered for Ann the company prosecutes this writ and asks that it be made a supersedeas. Two specifications are relied upon. They raise the simple question of the sufficiency of the evidence. We elect to finally dispose of the cause.

The company says it is not an insurer of the safety of its patrons, citing cases. It also cites a number of authorities on various phases of the case. The law announced therein is undisputed. Among these is Crawford v. Pacific States S & L. Co., 22 Cal.App.2d 448, 71 P.2d 333. Counsel for plaintiff say it was the company's duty to have the theater in safe condition and give warning of concealed perils, citing the Crawford case, supra. Counsel for plaintiff cite no other authorities, nor need they. No rule of law relied upon by either litigant can be seriously controverted. No material fact is in dispute and the sole question is: Do the company's admitted acts or omissions constitute negligence and the proximate cause of plaintiff's injuries?

At the time of the trial plaintiff was thirty years old. In infancy she had an attack of infantile paralysis which left her permanently afflicted. Her legs were partially paralyzed, she had marked curvature of the spine, and she walked with a cane upon which she leaned heavily. Her schooling closed when at the age of twenty she completed the ninth grade.

The Tabor Theater, like most such places, had certain side or 'emergency' doors not generally used as exits, but which could be so used. These were so fastened as not to serve as entrances. One of them, a 'double door,' was located approximately one-fourth of the distance from the rear toward the stage on the right-hand aisle. It opened on several cement steps leading down to an alley. From the edge of the aisle outward there was a slight downward slope. Above this door in large letters was the word 'Exit.' At the time of the accident the door was covered by heavy drapes whose only purpose was ornamentation. The fastening was what is known as a 'panic bolt,' i. e., across the left of the two sections, less than half way up from the floor, ran a horizontal bar. From this to top and bottom extended connecting bars. When closed these fitted about half an inch into the frame at the top and the floor at the bottom, thus securing the doors. Inside pressure on the horizontal bar would withdraw the fastening permitting the doors to be pushed open outward.

Plaintiff was well acquainted with the Tabor Theater, attending 'shows' there almost weekly. She never went alone. On December 2, 1941, accompanied by her cousin, Cecilia Labriola, she was there from early evening until 10 p. m. At that hour the two prepared to depart. They had been occupying seats on the aisle opposite on the door above described Ann sitting on the outside. They stood in the aisle, alone, while Cecilia put on her coat, Ann facing her, back to the door. On the stand she said: 'I told her I would stand there while she was putting her coat on so as we was walking she wouldn't fool with her coat and I...