Magruder v. Columbia Amusement Co.

• Decision Date: 11 March 1927
• Citation: 218 Ky. 761
• Parties: Magruder v. Columbia Amusement Company.
• Court: United States State Supreme Court — District of Kentucky

218 Ky. 761

Magruder v. Columbia Amusement Company.

Court of Appeals of Kentucky.

Decided March 11, 1927.

1. Theaters and Shows — Theater Owner Must Use Ordinary Care to Maintain Aisles and Floors in Reasonably Safe Condition for Patrons. — Theater owner is liable for injuries to patron caused by

his failure to use ordinary care to maintain floors and aisles along which patrons are expected to pass in reasonably safe condition.

2. Theaters and Shows — That Patrons of Show Arrive and Depart at Any Time Must be Considered in Determining Owner's Care. — The fact that patrons of vaudeville and moving picture shows may arrive and depart at any time must be considered in determining degree of care required of theater owner in maintaining premises in reasonably safe condition.

3. Theaters and Shows — Maintaining Unlighted Step-Off of Five Inches from Aisle to Seats Held Not Negligence as Matter of Law. — Whether owner of vaudeville and picture show was negligent in maintaining unlighted step-off of four or five inches from aisle to seats, whereby patron was injured, held question for jury.

4. Trial — Allegation of Answer, Unsupported by Evidence, Cannot be Considered in Determining Whether Case is for Jury. — Mere allegation in answer, unsupported by evidence, cannot be considered in determining whether evidence for plaintiff was sufficient to take case to jury.

5. Theaters and Shows — Theater Patron Cannot be Said to Have Assumed Risk, in Absence of Evidence Defective Condition of Aisle was Known or Obvious. — Theater patron cannot be held to have assumed risk of owner's negligence in maintaining step-off from seats to aisle, where evidence did not show that she knew thereof, or that its existence would have been observed by an ordinarily prudent person in patron's situation.

6. Theaters and Shows — Whether Unlighted Step in Theater Aisle was Proximate Cause of Injury to Patron Held for Jury. — Where patron of vaudeville and picture show was injured while leaving seat, whether unlighted step into aisle was proximate cause of injuries held for jury under evidence.

7. Theaters and Shows — Theater Patron, Injured While Leaving Seat in Dark, Held Not Guilty of Contributory Negligence as Matter of Law. — Patron attending defendant's vaudeville and picture show for second time, injured while leaving seat and stepping down into aisle in dark, held not guilty of contributory negligence as matter of law in failing to observe step-off.

Appeal from McCracken Circuit Court.

C.C. GRASSHAM and L.B. ALEXANDER for appellant.

WHEELER & HUGHES for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE CLAY.

Reversing.

In this action by Annie Louise Magruder against the Columbia Amusement Company to recover for personal injuries the trial court directed a verdict in favor of the defendant. Plaintiff appeals.

Appellee owns and conducts the Orpheum Theater in the city of Paducah, where vaudeville and picture shows are given. On the evening of December 26, 1925, appellant went to the theater in company with her daughter. As she entered the theater it was dark and she was ushered to a seat a few rows from the rear and a few feet from the aisle. The floor occupied by the seats is four or five inches above the floor of the aisle. Appellant did not notice the elevation as she entered. After remaining for a while she and her daughter started to leave. The performance was going on at the time and the lights were down. There was evidence that there were lights under the seats some distance apart, but no light at the place where she stepped into the aisle, and it was very dark there. Appellant describes how the accident...