Hickey v. Fox-Ozark Theatres Corp.
| Citation | 156 Kan. 137,131 P.2d 671 |
| Decision Date | 12 December 1942 |
| Docket Number | 35668. |
| Parties | HICKEY v. FOX-OZARK THEATRES CORPORATION. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
Proprietors of places of public entertainment or amusement are not "insurers" of their patrons against injury, but are only chargeable with the exercise of what under the particular circumstances is ordinary or reasonable care.
In action against theater owner for injuries sustained by patron in falling down stairway, evidence that patron was familiar with stairway, that it was sufficiently lighted and that patron fell when struck by a boy running down stairway was insufficient to establish negligence of theater owner, where there was no evidence that sufficient attendants were not provided to give reasonable necessary attention to patrons or that any attendant was derelict in his duty.
Ordinarily a question of negligence is one for the jury, but where, upon the undisputed testimony no facts or circumstances are shown which, in the minds of reasonable men, can be said to constitute a cause of action based on negligence, it becomes a "question of law" to be determined by the court when the sufficiency of such evidence is properly challenged.
1. Proprietors of places of public entertainment or amusement are not insurers of their patrons, against injury, but are only chargeable with such care as is reasonable under the circumstances.
2. A question of negligence is ordinarily one for the jury, but where the facts are undisputed and the sufficiency of the evidence is properly challenged it is the province of the court to say, as a matter of law, whether actionable negligence can be inferred--whether the facts viewed most favorably to the plaintiff constitute a cause of action against the defendant.
3. Record examined in an action for damages for personal injuries suffered by the plaintiff in a fall on the stairs of a theatre and held that under the facts and circumstances stated in the opinion the plaintiff's evidence constituted no cause of action against the owner and operator of the theatre.
Appeal from District Court, Butler County; George J. Benson, Judge.
Action by Nettie G. Hickey against Fox-Ozark Theatres Corporation to recover for injuries sustained resulting from falling down a stairway in defendant's theater. From a judgment for plaintiff defendant appeals.
Reversed with directions to enter judgment for defendant.
In action against theater owner for injuries sustained by patron in falling down stairway, evidence that patron was familiar with stairway, that it was sufficiently lighted and that patron fell when struck by a boy running down stairway was insufficient to establish negligence of theater owner, where there was no evidence that sufficient attendants were not provided to give reasonable necessary attention to patrons or that any attendant was derelict in his duty.
J. B Patterson, of Wichita (A. W. Hershberger, Enos E. Hook Patrick J. Warnick, R. E. Kirkpatrick, and Richard Jones, all of Wichita, on the brief), for appellant.
Arnold C. Todd, of Wichita (L. J. Bond, of ElDorado, and Kurt Riesen, of Wichita, on the brief), for appellee.
Plaintiff was injured in a fall on the stairs at a theatre, and recovered damages against the owner and operator of the theatre. The defendant appeals.
The plaintiff, a resident of ElDorado, alleged in her petition that she attended a show at the "ElDorado Theatre" on May 29, 1940, and took a seat in the balcony; that the stairway to the balcony was poorly lighted and had no handrail on the east or left-hand side going down; that after seeing the show she started down the stairway and when part way down some boys, patrons of the theatre, rushed down the stairway, ran into her and caused her to fall and suffer severe injuries. She alleged that her injuries resulted from negligence of the defendant in failing to provide the stairway with handrails, in failing to have the stairway properly lighted, and in failing "to guard and protect patrons of said theatre from being pushed or otherwise endangered, by the patrons of the theatre." She asked damages in the sum of $2,500 for personal injuries and for $278.96 for expenses for hospital, doctor bills, etc. The answer consisted of a general denial and an allegation that if the plaintiff suffered injuries they were caused by her own negligence. Trial was had and the jury returned a verdict for the plaintiff for $1,543.96 and answered special questions.
The principal contentions urged by appellant are that the court erred in refusing to permit certain questions asked on cross-examination, in overruling its demurrer to the evidence and in overruling the motion for judgment notwithstanding the general verdict.
We shall consider first the demurrer to the evidence. Plaintiff testified, in substance, that she had lived in ElDorado since 1923; that she had attended the ElDorado Theatre from time to time and had been up and down the stairway to the balcony several times,--"quite often"--before the accident that on the day in question she and a friend, Mrs. Lehr, visited the show in the evening, getting there during the first evening show; that when the picture reached the point "where they came in" she and her friend started to leave the theatre and started down the stairway; that there was no one else on the stairway as they descended; that there was a handrail on the right-hand side but that she was beside Mrs. Lehr and coming down the left-hand side of the stairway, with her hand sliding along a broad banister which was on the left-hand side; that the stairway was rather wide and pretty steep, with heavy carpet; that when they were about half way down a boy came rushing down the stair and ran into her and gave her such a shove that she couldn't catch herself; that she tried to grab the rail but that there was no handrail on that side, but "just a big board," "a broad banister," and she couldn't get hold of it; that the stairway was dimly lighted but that she could see where she was stepping; that if the stairway had been better lighted she might have been able to see the steps more plainly and might have been able to "hit the steps in a manner"; that she "wouldn't have gone on down"; that "under ordinary circumstances there would have been sufficient lighting"; that there was just the usual crowd and "not a lot of people crowding out at that time"; that there were two boys, and possibly more who came down the stairway; that she didn't think she would have fallen if the boy hadn't run into her "with a good deal of force." We need not recite the testimony as to the nature and extent of her injuries.
Mrs Lehr's testimony was substantially the same as that of the plaintiff. She testified that she and Mrs. Hickey were coming down the stairs together, walking side by side; that there was no crowd milling up and down or on the stairway behind them and she did not notice any school children in the hallway at that time; that as far as she knew the only people on the stairway when the accident occurred were Mrs. Hickey, herself and the two boys; that she heard a noise but before she could turn around to see what it was, the boy, coming down the stairs rapidly pushed Mrs. Hickey and that she attempted to grab her but couldn't; that in her judgment the boys were ten or twelve years old; that the...
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