Majestic Theater Company v. Lutz

• Decision Date: 19 June 1925
• Citation: 210 Ky. 92
• Parties: Majestic Theater Company v. Lutz.
• Court: United States State Supreme Court — District of Kentucky

210 Ky. 92

Majestic Theater Company v. Lutz.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided June 19, 1925.

1. Theatres and Shows — Whether Steps of Theatre Were Unsafe, Held Question for Jury. — In action for injuries resulting from slipping on marble steps of theatre, whether steps were polished, glazed, and slippery, and therefore dangerous to persons descending, or whether they were rough-finished marble, held for jury, where evidence was sharply conflicting.

2. Negligence — Duty to Invitee Stated. — Invitee receiving gratuitous favor like licensee, must take premises as he finds them, but person expressly or impliedly inviting others to come on his premises for business owes them duty of exercising ordinary care to render premises reasonably safe.

3. Theatres and Shows — Theatre Patron Held Invitee, Entitled to Have Premises in Reasonably Safe Condition. — Theatre patron who pays to see performance is invitee, and owner of theatre must exercise reasonable care to have premises, including stairway on which patrons pass, in reasonably safe condition, and if he fails to do so is liable to one injured through his negligence in failing to perform his duty.

4. Theatres and Shows — Theatre Owner Liable for Injuries from Maintaining Steps in "Inherently Dangerous" Condition — "Inhere." — Though marble steps are not inherently dangerous, they may be made so, and theatre owner is liable for injuries resulting from maintaining steps in such glazed and slippery condition as to make them "inherently dangerous" even if otherwise constructed in approved manner; "inherently dangerous" meaning that in the end inheres danger; "inhere" meaning existing in and inseparable from something else, sticking fast.

5. Theatres and Shows — Person Injured Not Entitled to Recover, Unless Place was Unsafe. — If structure or improvement made by city or individual operating place, such as theatre, be built according to recognized principles and of proper material, one who falls and injures himself thereon is not entitled to damages, unless improvement, when made according to plans, was unsafe and dangerous for use for which it was maintained.

6. Trial — Instructions Requested by Defendant Theatre Owner Held Properly Refused, in View of Instructions Given. — Where instructions given in action for injuries from slipping on marble stairs of theatre covered owner's duty to keep steps in safe condition for patrons, contributory negligence, and measure of damages, and defined "ordinary and reasonable care," held that court properly refused defendant's instructions as to contributory negligence, assumed risk, and that, if steps were defective and plaintiff had notice thereof, to find for defendant.

7. Damages — Evidence Held to Warrant Instruction to Find for Patron Who Fell on Theatre Steps on Account of Diminution of Earning Power. — In action for injuries from slipping on stairs of theatre, evidence held to warrant instruction to find for plaintiff on account of diminution of her earning power.

8. Appeal and Error — Question Raised by Appellant's Objection, Sustained by Trial Court, Held Not Reversible on Appeal. — Question raised by appellant's objection which was sustained by trial court held not reviewable on appeal.

9. Appeal and Error — Argument of Plaintiff's Counsel in Personal Injury Action Held Not Prejudicial. — In action for personal injuries, statements by plaintiff's counsel in argument that he did not know and did not care why defendant was spending money to take down his argument and to bring witnesses and experts to testify held not prejudicial.

10. Appeal and Error — Trial — Trial Court Has Reasonable Discretion in Ruling on Motions for View of Premises by Jury, and, Unless it Violates this Discretion, its Ruling Will Not be Disturbed. — Trial court has reasonable discretion in ruling on motions for view of premises by jury, and, unless it violates this discretion, its ruling will not be disturbed.

11. Damages — Award of $3,850.00 for Permanent Injuries to Woman Held Not Excessive. — Where as result of fall a young saleslady seriously injured her knee and certain female organs, necessitating major operation involving removal of certain genital organs, an award of $3,850.00 held not excessive.

Appeal from Jefferson Circuit Court

TRABUE, DOOLAN, HELM & HELM, and HARRIS W. COLEMAN for appellant.

FRANK DACHER and JOHN O. ARNOLD for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON.

Affirming.

As she was leaving the Rialto Theater, which is operated by the appellant, Majestic Theater Company, in Louisville, appellee, Helen Josephine Lutz, a young woman, slipped and fell on the marble steps leading from the promenade to the first floor, striking and injuring her side, hip and knee, for which injuries she instituted this action against the theater company to recover damages on the ground that the marble steps were in a highly polished, glazed, slick and slippery condition, which rendered them dangerous, and which slippery condition was the proximate cause of her fall and injury. The company traversed the material averments of the petition and pleaded that the contributory negligence of Miss Lutz brought about her injury. By reply Miss Lutz traversed the plea of contributory negligence. Later she filed an amended petition averring that the staircase upon which she slipped and fell and was injured was more than eight (8) feet in width and that by the building code of the city of Louisville in force at the time of the erection of the Rialto Theater and at the time of the accident and injury to plaintiff, required staircases, such as the one in question, eight (8) feet or more wide, to be provided with a center handrail of metal, not less than two inches in diameter placed at the height of about three feet on the center of the tread and supported on wrought metal or brass standards of sufficient strength, not nearer than four (4) feet and no more than six feet apart, securely bolted to the tread of the stairs, and at the head of each flight of stairs on each landing the post or standard to be at least six feet in height, to which the railing should be securely attached; that the staircase in question was not so provided with such handrail running up the center; that such construction was in violation of the building code of the city, and that the failure to have a center handrail directly contributed to her fall and injury; that the company in the maintenance and construction of its theater was negligent in failing to provide a center handrail on the stairs described in the petition, "and negligently and carelessly ran and operated said theater and steps without providing said staircase with any center handrail whatever, and the failure of defendant, its agents and servants and employes to provide such, or any, handrail helped and caused to bring about the injuries set out in the plaintiff's petition."

These averments were traversed. A trial by jury resulted in a verdict for $3,850.00. From judgment entered upon that verdict this appeal is prosecuted. Appellant company insists that the judgment should be reversed (1) because (a) there is no evidence of negligence on appellant's part; (b) because of contributory negligence on appellee's part; (c) because it was not proven that appellant had notice of the defect claimed to exist by appellee; (2) because the court erred in instructing on the diminution of earning power, when there was no evidence to support this instruction; (3) because the court refused an instruction on the question of notice, if there were any evidence of notice to the appellant, of defective condition to the steps; (4) because the court admitted the incompetent evidence relating to mats and handrails (a) because it was not shown that these were required by law or good building practice; (b) because appellee had alleged specific acts of negligence, and there was no allegation that appellant was negligent in not furnishing mats; (5) because the court excluded competent evidence offered in the testimony of Dr. Stuart Graves; (6) because the verdict is excessive, either induced by incompetent opinion evidence given by Dr. Casper, or by the prejudicial remarks made to the jury by appellee's counsel, and (7) that the jury should have been allowed to see the premises.

Its chief insistence, however, is, that the trial court should have sustained its motion for a directed verdict in its favor, and this question has given us great concern. It says in its brief that marble steps are not inherently dangerous and a person who slips and falls thereon has no cause of action against the owner unless there is a defect in the construction. In support of this proposition it cites the case of Tudor v. City of Louisville, 172 Ky. 429; also City of Louisville v. Uebelhor, 142 Ky. 151; Carroll's Admr. v. City of Louisville, 117 Ky. 758; McCourt v. City of Covington, 143 Ky. 484; Breckman v. City of Covington, 143 Ky. 444.

On the other hand, appellee, Lutz, insists that as she was an invitee, paying an admission fee to witness an amusement program in the theater, the company operating the place owed her the duty to use ordinary care to keep its premises, including its marble steps leading in and from its theater, in a safe condition, and its failure to perform this duty and the resulting injury of appellee rendered it liable in damages. Miss Lutz and a young woman companion went to the theater on Sunday night. The crowd was large. When it was found they could not obtain seats on the first floor an usher, employed by the theater company, instructed them to go up the steps to the promenade, which they did; the second floor was as crowded as the first, and the usher in charge there, realizing the situation, instructed the young ladies to return to the first floor. After viewing the situation they decided to accept his advice and started to go back down the steps by which they came up, but the...