Klaman v. Hitchcock

• Decision Date: 03 July 1930
• Docket Number: 28,020
• Citation: 231 N.W. 716,181 Minn. 109
• Parties: BERTHA KLAMAN v. CLYDE H. HITCHCOCK AND ANOTHER
• Court: Minnesota Supreme Court

231 N.W. 716

181 Minn. 109

BERTHA KLAMAN v. CLYDE H. HITCHCOCK AND ANOTHER

No. 28,020

Supreme Court of Minnesota

July 3, 1930

Action in the district court for Hennepin county to recover damages for personal injuries sustained by plaintiff while attending a motion picture performance in defendants' theater. The case was tried before Salmon, J. and a jury. Plaintiff recovered a verdict of $7,000. Defendants' motion for judgment notwithstanding the verdict was denied and their motion for a new trial granted unless plaintiff should consent to a reduction of the verdict to $4,000, in which case the motion for a new trial was denied. Plaintiff accepted the reduction, and defendants appealed from the order so made. Affirmed.

SYLLABUS

Due care required of a theater manager.

1. The standard of ordinary or due care for the safety of his patrons, owing by the proprietor of a theater or place of amusement, defined.

Reduction of excessive verdict without new trial.

2. An excessive verdict, appearing to indicate passion or prejudice on the part of the jury, may be cured by a proper reduction without a new trial where there is nothing to indicate that the jury was influenced by passion or prejudice in the determination of the other issues.

Failure to charge not reversible error.

3. Failure to define "proximate cause," or to charge specially as to independent, efficient intervening cause, in a negligence case, where no request to charge is made and the omissions are not called to the attention of the court at the time, held not reversible error.

Other errors not reversible.

4. Other errors assigned found not well taken.

J Frank Boyles, F. P. Shannon and L. K. Eaton, for appellants.

A. M Gunn and John R. Carey, for respondent.

OPINION

OLSEN, C.

Appeal by defendants from an order denying their alternative motion for judgment notwithstanding the verdict or for a new trial.

Plaintiff brings the action to recover damages for personal injury. Defendants are the proprietors of and operate a moving picture theater in Minneapolis. On the evening of November 7, 1928, the plaintiff paid for admission to and attended a picture show in the theater. During the performance and while sitting in her seat on the main floor of the theater she was struck on the head and injured by a wooden chair seat which fell or was precipitated from the balcony.

There is evidence on the part of the plaintiff tending to show that the chairs or seats in the balcony were old, dilapidated, and some of them broken; that this chair seat had been broken out of one of the chairs; that during the performance this chair seat was lying on the rail in front of the balcony; that this rail was about seven inches wide and rounded so that the flat surface thereof was only five inches wide and an insecure place upon which to rest a chair seat about 16 by 18 inches in size; that the seat, by reason of instability or some vibration, slipped and fell from the balcony rail and upon plaintiff's head; that there were no persons near or in contact with the seat at the time it fell. Plaintiff's evidence does not show how or by whom the seat was placed on the railing or how long it had remained there, except that it was there for a time during the performance.

There is evidence on the part of the defendants tending to show that three boys were in the balcony at the time and that one of them threw the seat down therefrom, but this evidence was not conclusive or such that the jury was bound to accept it.

1. The duty of the defendants was to exercise ordinary care to prevent injury to their patrons, due care under the circumstances and the situation shown. The standard of care is that which persons of ordinary prudence usually exercise under similar circumstances, care commensurate with the circumstances. We do not apply any different standard except, perhaps, in the case of passengers transported by common carriers or in situations of like character. See Bibeau v. Fred W. Pearce Corp. 173 Minn. 331, 217 N.W. 374. What is due or ordinary care varies with the situation and circumstances in each particular case, but the standard remains the same. Mingo v. Extrand, 180 Minn. 395, 230 N.W. 895. In Mastad v. Swedish Brethren, 83 Minn. 40, 85 N.W. 913, 53 L.R.A. 803, 85 A.S.R. 446, and in Wells v. Minneapolis B. & A. Assn. 122 Minn. 327, 142 N.W. 706, 46 L.R.A.(N.S.) 606, Ann. Cas. 1914D, 1123, it is stated that as to patrons of a place of public entertainment or amusement the proprietor thereof must exercise a high degree of care for the safety of those invited. This is not the application of any different standard, but a holding that under the particular circumstances the standard of ordinary care requires a high degree of care. In the note to Frye v. Omaha & C.B. St. Ry. Co. 106 Neb. 333, 183 N.W. 567, 22 A.L.R. 607, 611, the author sums up the holdings of the decisions as follows:

"While the proprietor or manager of a place of public amusement or entertainment is held to a stricter accountability for injuries to patrons than owners of private premises generally, the rule is that he is not an insurer of safety of patrons, but owes to them only what, under the particular circumstances, is 'ordinary' or 'reasonable' care."

We are agreed that under the evidence in the record before us it was a proper question for the jury to determine whether there was a failure on the part of the defendants to exercise the ordinary or due care required under the circumstances, and that the verdict finding the defendants negligent is sustained by the evidence.

2. The jury returned a verdict for $7,000. The trial court, as a condition to the denial of the motion for a new trial, reduced the verdict to $4,000. It is urged that the verdict was so excessive as to indicate that it was given under the influence of passion and prejudice and that the court erred in not granting a new trial unconditionally. The rule as to when the trial court may conditionally reduce a verdict instead of unconditionally granting a new trial is clearly and fully stated in Goss v. Goss, 102 Minn. 346, 348, 113 N.W. 690, 691, as follows:

"The rule is now too well settled to be seriously questioned that the trial court may, in actions of tort, as well as in actions on contract, in the exercise of a sound judicial discretion, when it deems a verdict excessive and the result of passion and prejudice on the part of the jury, deny a new trial on condition that the prevailing party remit such sum as shall leave the recovery not excessive in the judgment of the court. When, however, the damages are so excessive, and the circumstances as disclosed by the evidence as to other issues are such as to indicate a fair probability that the jury were influenced by passion or prejudice in the determination of the other issues, a new trial should be granted. Whether in any given case a new trial should be...