Hunker v. Warner Bros. Theatres INC.

• Citation: 115 W.Va. 641
• Decision Date: 11 December 1934
• Docket Number: (No. 7891)
• Court: West Virginia Supreme Court
• Parties: Bernice Hunker v. Warner Brothers Theatres, Inc.

115 W.Va. 641

Bernice Hunker

v.Warner Brothers Theatres, Inc.

(No. 7891)

Supreme Court of Appeals of West Virginia.

Submitted November 20, 1934.

Decided December11, 1934.

1. Negligence

Res i]3sa loquitur is not an arbitrary formula, but is a phrase of limited application. The mere fact of an accident does not warrant its application. It is applied only when the circumstances attending the accident, without further proof, are such that in the ordinary course of events the accident could not have happened except on the theory of negligence. In such case, the doctrine raises a presumption or permits an inference that negligence caused the accident.

2. Theaters and Shows

The proprietor of a place of public amusement is not an insurer of the safety of his patrons. He does impliedly warrant that the premises are safe for the patrons, but he does not contract against unknown defects not discoverable by ordinary care. The degree of care required of him in this respect is the care which an ordinarily careful or prudent man would exercise, under like circumstances.

3. Theaters and Shows

The application of the doctrine of res ipsa loquitur does not affect the general rule that where defendant's evidence establishes the absence of negligence so clearly as to leave no issuable fact for the jury to determine, the question of negligence is for the court and not the jury.

Error to Circuit Court, Kanawha County.

Action by Bernice Hunker against Warner Bros. Theatres, Inc. Judgment for plaintiff, and defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

Robert H. C. Kay, G. C. Belknap, Frank C. Fisher and Leo Loeb, for plaintiff in error.

B. J. Pettigrew, Rummel, Blagg & Stone, H. Rummel Anderson and Bernard Sclove, for defendant in error.

Hatcher, Judge:

Plaintiff recovered a verdict and judgment of $10,-000.00 for personal injury alleged to have resulted from a fall in a moving picture theater owned by defendant. The fall was alleged to have been caused by a defective condition in a long carpet or runner in an aisle of the theater. Defendant prosecutes error.

The carpet was heavy and was stretched over a pad which was not quite as wide. At both ends and at intervals of several feet along its edge it was fastened to the aisle way with tacks driven into wooden pegs in holes in the concrete floor. There was a tier of seats on each side of this aisle, and the carpet came within a few inches of the base of each tier.

The plaintiff and her husband had attended an entertainment at the theater and were starting to leave when the accident happened. Her husband had preceded her into the aisle. According to her testimony, when she attempted to pass from her seat into the aisle, she caught the toe of her foot between the carpet and the pad and fell into and across the aisle, striking her back on a part of an opposite seat.

Plaintiff adduced evidence that where she tripped, the edge of the carpet was raised "about an inch and a half" for a distance of "a little over a foot." There is no evidence that the carpet was torn, twisted, curled, crumpled, propped up, or askew. Why that particular section of the carpet should have been raised is not explained. Its suspension is the more remarkable in view of testimony of one of her witnesses that the carpet was "mighty heavy" and that on the side opposite where she tripped "it was lying smooth on the floor." How long the edge in question was elevated does not appear. Both plaintiff and her husband had walked over this identical section in taking their seats without perceiving an elevation. The husband preceded the plaintiff over the carpet as they left their seats without noticing an elevation. There is no evidence that the defendant knew of it or that there had been any prior disarrangement of the carpet. Lacking any direct proof of proprietorial negligence, the plaintiff invokes the doctrine of res ipsa loquitur.

Res ipsa loquitur is not an arbitrary formula, but is a phrase of limited application. The mere fact of an accident does not warrant its application. It is applied only when the circumstances attending the accident, without further proof, are such that in the ordinary course of events the accident could not have happened except on the theory of negligence. In such case, the doctrine raises a presumption or permits an inference of negligence on the part of the proprietor. See generally on this subject Cooley on Torts (4th Ed.), sec. 480; Jones Commentaries on Evidence (2d Ed.), sec. 518; Thompson on Negligence, Vol. 8, sec. 7635; Shearman & Redfield on Negligence (6th Ed.), sees. 58a and 58b.

The mere fact that the defendant's carpet was raised at the moment of accident does not denote that it had been in that condition any certain period prior to the accident. Unless the condition had existed long enough to have given the proprietor opportunity to have seen it in the exercise of due care, he cannot be held liable. "Knowledge either actual or constructive is essential to impose liability." 62 C. J., subj. Theaters and Shows, sec. 47. O'Toole v. Park Ass'n., 200 N. Y. S. 502. Since there is no evidence upon the duration of the condition or evidence from which a reliable inference can be drawn, the duration is purely a matter of conjecture. It has been held generally that evidence so meager is not sufficient to support a presumption of negligence. In the case of Gibbons v. Amusement Co., (Pa.) 167 Atl. 250, a theater patron tripped on a rug. The evidence and the holding in that case are briefly stated by the court as follows: "The evidence adduced by the plaintiff, giving it every favorable intendment, amounted to nothing more than that a rug in good condition over which the plaintiff had walked, five or ten minutes before, and which then had no wrinkle or crumple in it, had, upon her return, a wrinkle or crumple which she saw, but took to be a shadow, and in which her foot caught. Unless we...