Lyric Amusement Co. v. Jeffries

• Decision Date: 22 December 1941
• Docket Number: Civil 4429
• Citation: 120 P.2d 417,58 Ariz. 381
• Parties: LYRIC AMUSEMENT COMPANY, a Corporation, Appellant, v. JAMES JEFFRIES, a Minor, by Gertrude Watkins, as Guardian ad Litem, Appellee
• Court: Arizona Supreme Court

120 P.2d 417

58 Ariz. 381

LYRIC AMUSEMENT COMPANY, a Corporation, Appellant, v. JAMES JEFFRIES, a Minor, by Gertrude Watkins, as Guardian ad Litem, Appellee

Civil No. 4429

Supreme Court of Arizona

December 22, 1941

APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.

Messrs Darnell, Pattee & Robertson, for Appellant.

Mr Frank E. Thomas and Mr. Hoyt Irving, for Appellee.

OPINION

LOCKWOOD, C.J.

James Jeffries, a minor, called plaintiff, brought suit against Lyric Amusement Company, a corporation, called defendant, for damages as the result of an injury received through the alleged negligence of defendant. The jury returned a verdict in favor of plaintiff for the sum of $3,500, which was reduced by a remittitur to $1,250 in the superior court. The case is before us on an appeal by the defendant and a cross-appeal by plaintiff from the order of the superior court requiring the remittitur as a condition to denying the motion for new trial.

The first question for our consideration on the appeal is whether the evidence sustains the judgment. This evidence may be stated as follows: Defendant owns and operates a moving picture theatre in Bisbee, Arizona. On February 11, 1939 plaintiff, who was at the time about seven years of age, accompanied his older brother Donald to the theatre. They entered the building while the lights were turned up in the manner usual for movie theatres before the showing of pictures begins. The seats on the floor of the theatre were divided into three sections, separated by aisles running from the entrance towards the stage. The boys sat down somewhere in the middle section some half dozen rows from the front. About five minutes later the picture was thrown on the screen and the house lights were dimmed in the usual manner. After about ten minutes one of the ushers requested the boys to move further up in front. They went out into the right-hand aisle, passed sown it to the front of the theatre, walked across and turned up the left-hand aisle. No usher accompanied them. Somewhere between the first and third row of seats plaintiff, who was walking a short distance ahead of his brother, fell and broke his arm, and it is for this injury, which was somewhat serious in its nature, he recovered damages.

There is nothing in the evidence introduced by plaintiff which shows just what occasioned his fall. Plaintiff himself had no idea, nor did his brother who was with him. Nor is there any testimony in the record that there was any defect in the condition of the building or its fixtures which might have caused it.

After plaintiff has rested, defendant placed on the stand a boy who had attended the same performance at which plaintiff was injured, and he stated that he was sitting in the left-hand corner seat of the front row when plaintiff passed him just before the accident, and that the latter fell over the feet of the witness at the place and time when his arm was broken. This testimony was not contradicted nor impeached in any manner. He testified also that the accident occurred while the house lights were up and before the picture had started, and on this point he was contradicted by three witnesses.

At the request of the parties, after the oral testimony was in, the jury was permitted to visit the theatre where the accident occurred and enter it when all the lights were turned on so that they could walk around and see such portions of the interior of the auditorium as they saw fit, and then be seated while the house lights dimmed to the point they were usually dimmed during the projection of a picture, and sit there for five minutes while some picture was being shown and view the interior of the premises for the purpose of considering its lighting and the visibility while a picture was in progress.

Apparently, from the briefs, plaintiff abandoned any contention that there was any improper obstruction or defect maintained or caused by defendant which caused him to fall, and rested his case on the alleged negligence of plaintiff in requiring him to move from his seat while the house lights were dimmed for the projection of the picture, without providing an usher with a flashlight to light his way to his new seat. In other words, that the lighting was inadequate for him to change his seat safely without aid. It is the law that it is the duty of the proprietor of a theatre to provide a reasonably safe place for his patrons, in view of all the circumstances and conditions under which they have been invited to visit the theatre. The extent and nature of the care required will vary with circumstances.

It is a well known fact, of which we take judicial notice, that in the exhibition of moving pictures it is necessary that a theatre be darkened to a very great extent, so much so that patrons entering the auditorium after the pictures have started are generally unable to see how to reach their seats safely without some special aid, until their eyes have become adjusted to the changed light, for it is a scientific fact that anyone passing from a brightly lighted place to a partially darkened room will require some time for the sight to become adjusted so that he can see properly in the latter place. For this reason most movie houses now provide ushers with flashlights, whose duty it is to assist patrons in reaching their seats, and we think some aid for that purpose must be furnished, in order that the owner of a theatre may be said to use due care in the seating of his patrons.

It is admitted that one of the defendant's employees directed plaintiff and his brother to take different seats in the auditorium from those which they originally occupied. It is further admitted that no effort was made to provide them with any aid to assist them in reaching other seats. We think that the question of whether the light in the theatre at the time was sufficient to make it safe for these boys to move as they were directed to do, without additional light, was an issue of fact for the consideration of the jury. It was evidently so considered by both parties, for they requested that the jury visit the scene of the accident, under lighting conditions as nearly as possible similar to those which existed at the time of the accident, to consider whether the theatre was properly lighted. We must assume that the jury came to the conclusion that it was not the exercise of proper care for defendant's employee to direct plaintiff to change his seat under such conditions without assisting him to find a new seat, and we cannot say on the evidence as it appears in the record that it was not justified in so finding.

But was this negligence a proximate cause of the accident, for if it was not defendant is not liable therefor. It is urged that in determining this we must accept as true the evidence of the witness Billy Fowler that the immediate cause of the accident was that plaintiff fell over...