Grand-Morgan Theatre Co. v. Kearney, 8649.

• Decision Date: 20 March 1930
• Docket Number: No. 8649.,8649.
• Parties: GRAND-MORGAN THEATRE CO. v. KEARNEY.
• Court: U.S. Court of Appeals — Eighth Circuit

40 F.2d 235 (1930)

GRAND-MORGAN THEATRE CO. v. KEARNEY.

No. 8649.

Circuit Court of Appeals, Eighth Circuit.

March 20, 1930.

Ralph T. Finley, of St. Louis, Mo. (James C. Jones, Lon O. Hocker, Frank H. Sullivan, and James C. Jones, Jr., all of St. Louis, Mo., on the brief), for appellant.

J. M. Feigenbaum, of St. Louis, Mo., for appellee.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and DEWEY, District Judge.

DEWEY, District Judge.

Appellee, George H. Kearney, hereinafter referred to as plaintiff, attended a cinematographic show in a theater owned by Grand-Morgan Theatre Company, appellant, hereinafter referred to as defendant. While going down one of the aisles in the balcony, he fell and received the injuries resulting in the damage sought to be recovered in this suit.

His story, as told on the witness stand, is that he went up to the balcony, stood there a minute or two so as to try and accustom his eyes to the darkness, and, as no usher was there, decided to walk over and look for a seat. He was not able to see anything clearly, the steps and seats were more or less of an outline, but noticed there were quite a few empty seats. The pictures were being shown, and the house was comparatively dark, and he had noticed that in some of the theatres there was more light.

On the second step he caught his right foot on the carpet and fell. After his fall he went back and examined the step, and discerned that the carpet was crumpled up to the edge; that there was a rise there of approximately an inch, and probably an inch and a half or two inches back from the front edge of the step, and that this condition went nearly all the way across the step; that it was either padding under the carpet that had become wadded up or the carpet had become loose. His first step was with his left foot and the second with the right foot, and his heel caught in the carpet and threw him forward.

At certain places there was sort of a green light along the seats; a very dim light that cast a light but a short distance almost directly under the seats. There was no light at all reflected on the step, and he could not see the unevenness of the carpet. It was approximately two minutes after he fell until an usher came up.

He had been to the theater before, and knew where to go, but on the previous occasions he had always been led down to his seat by an usher who carried a flashlight and walked ahead of him holding the light.

The story of plaintiff is corroborated to some extent by his son.

The defendant's witnesses, consisting of the chief electrical maintenance man and engineer, together with the usher who was on duty at the time the plaintiff fell, testified that regular inspections were made of the carpet and the lights in the theater and at the place where plaintiff fell, and that there was no roll in the carpet, but that it was smooth and in good condition. Also that the lights were in good condition, and were bright enough to not only show the steps, but to enable one to see the figures in the carpet.

The plaintiff's declaration sets out specific grounds of negligence as follows:

(1) Plaintiff states that defendant carelessly and negligently permitted the left aisle of said balcony to remain without sufficient light to guide patrons down said aisle or enable them to clearly see the steps thereof, and by reason thereof plaintiff was unable to see the knotty condition of the carpet on one of the steps of said aisle, and his right foot was caught on the edge of said step and plaintiff injured as aforesaid.

(2) For another and further assignment of negligence against defendant, plaintiff states that defendant knew, or, by the exercise of ordinary care, could have known, that one of the steps of the left aisle of the balcony of said theater was dangerous for use by the patrons entering same, and in the dark and insufficiently lighted condition of said balcony, without the direction or assistance of some usher directing the way with a flashlight for such patrons, including this plaintiff, but that defendant carelessly and negligently failed to have an usher on said side of the balcony to direct this plaintiff to his seat, and by reason thereof plaintiff's right foot was caused to be caught by the edge of one of the steps of said aisle and plaintiff to be injured as aforesaid.

It is readily perceived that it was the thought of the pleader to charge the defendant with negligence in having a defective carpet and failing to furnish sufficient light that would enable patrons of the theatre to see and observe this dangerous condition.

The court, however, in submitting the issues, made no reference to the condition of the carpet, and stated the grounds of negligence submitted to the jury as follows: (1) "That the defendant negligently permitted the left side of the balcony of the theatre to remain without sufficient light to guide patrons down said aisle and to enable them to clearly see the steps thereof;" and (2) "that the defendant...