Maybee v. Missouri Orpheum Corp.
| Citation | 181 S.W.2d 771,238 Mo.App. 537 |
| Parties | Pearl Maybee, Respondent, v. Missouri Orpheum Corporation, Appellant |
| Decision Date | 05 June 1944 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.
Affirmed.
Paul C Sprinkle, William F. Knowles and Sprinkle & Knowles for appellant.
(1) The court erred in refusing to sustain appellant's demurrer at the close of all the evidence. The plaintiff failed to introduce any evidence showing that appellant had either actual or constructive knowledge of the presence of the loose or cupped-up condition of the carpet prior to plaintiff's fall. Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648; McKeighan v. Kline's Inc., 339 Mo. 523, 98 S.W.2d 555; State ex rel Trading Post v. Shain, 342 Mo. 588, 116 S.W.2d 99; Monsoor v. Excelsior Tobacco Co. (Mo. App.), 115 S.W.2d 219; Hubenschmidt v. Kresge Co. (Mo. App.), 115 S.W.2d 211; Smith v. Sears Roebuck & Co. (Mo. App.), 117 S.W.2d 658; Broughton v. Kresge Co. (Mo. App.), 26 S.W.2d 838; Ulentrup v. Switzerland Stores (Mo. App.), 164 S.W.2d 650; Varner v. Kroger Grocery & Baking Co. (Mo. App.), 75 S.W.2d 585; Snowwhite v. Met. Life Insurance Co., 344 Mo. 705, 127 S.W.2d 718; Conduitt v. Electric Co., 326 Mo. 133, 31 S.W.2d 21; Caldwell v. Payne (Mo.), 246 S.W. 312; Harrison v. Railway Co., 339 Mo. 821, 99 S.W.2d 841; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Kelly v. Investment Co., 348 Mo. 407, 155 S.W.2d 90; Borrison v. R. R. Co. (Mo.), 161 S.W.2d 227, 230; Pape v. Aetna Cas. Ins. Co. (Mo. App.), 150 S.W.2d 569; Van Brock v. First Natl. Bank, 349 Mo. 425, 161 S.W.2d 258; Wilson v. Thompson (Mo. App.), 161 S.W.2d 435; Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802; State ex rel. Waters v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164; George v. R. R. Co., 213 Mo.App. 668, 251 S.W. 729; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Seago v. R. R. Co., 348 Mo. 761, 155 S.W.2d 126; Darby v. Henwood, 346 Mo. 1204, 145 S.W.2d 376; Pietraschke v. Pollnow (Mo. App.), 147 S.W.2d 167; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; Davidson v. Mo. Orpheum Corp. (Mo. App.), 161 S.W.2d 707; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Beaber v. Kurn, 231 Mo.App. 22, 91 S.W.2d 70. (2) The court erred in giving instruction lettered "A" on behalf of the plaintiff because said instruction informed the jury that the plaintiff could recover by reason of catching her foot under a loose carpet in appellant's theater whereby the plaintiff was caused to fall and injure herself, which instruction permitted the jury to find that the appellant had knowledge, either actual or constructive, of said condition when as a matter of fact there was no evidence of any kind in the case from which the jury could infer such knowledge. Said instruction therefore gave the jury a roving commission and was broader than the proof.
Madden, Freeman, Madden & Burke, William K. Atwood and W. B. Brewster for respondent.
(1) The evidence established notice to appellant of the defective condition of the carpet. Long v. Woolworth Co. (Mo. App.), 109 S.W.2d 85; Davidson v. Railroad Co., 301 Mo. 79, 256 S.W. 169; Steele v. Railroad Co., 265 Mo. 97, 175 S.W. 177; Smith v. Atlanta Life Ins. Co. (Mo. App.), 102 S.W.2d 757; Cunningham v. Kansas City Pub. Serv. Co. (Mo. App.), 77 S.W.2d 161; Short v. White (Mo. App.), 133 S.W.2d 1039; Murphy v. Wintergarden & Ice Co. (Mo. App.), 280 S.W. 444; Lewis v. National Bellas-Hess Co. (Mo. App.), 152 S.W.2d 674; Finn v. Terminal Association (Mo. App.), 97 S.W.2d 890; Maehlman v. Reuben Realty Co. (Ohio), 166 N.E. 920; Robinson v. Great Atlantic & Pacific Co. (Mo.), 147 S.W.2d 648; Summa v. Morgan Real Estate Co. (Mo.), 165 S.W.2d 390. (2) Respondent's proof of the defective condition of the carpet was based on affirmative testimony and not on presumptions or cumulative inferences. Snowwhite v. Ins. Co. (Mo.), 127 S.W.2d 718; Conduitt v. Trenton Gas Co. (Mo.), 31 S.W.2d 21; Stewart v. Geo. B. Peck Co. (Mo. App.), 135 S.W.2d 405; Smith v. Telephone Co., 113 Mo.App. 429; Clack v. Subway Co., 138 Mo.App. 205; Gutridge v. Railway Co., 105 Mo. 520; Sharpless v. Pantages (Cal.), 172 P. 384; Wills v. Delivery Co. (Mo.), 134 S.W.2d 125; Cardinale v. Kemp (Mo.), 274 S.W. 437; State ex rel. Mulcahy v. Hostetter (Mo.), 139 S.W.2d 939; Van Brock v. First Nat. Bank (Mo.), 161 S.W.2d 258; Davidson v. Missouri Orpheum Corp. (Mo. App.), 161 S.W.2d 707. (3) The courts have recognized that a higher degree of care is required of theater owners with respect to their patrons than is ordinarily imposed upon the owners of private premises. Welsh v. Jefferson City Agricultural Society (Neb.), 236 N.W. 331; Rutherford v. Academy of Music, 87 Pa.Super. Ct. 355; Emery v. Midwest Amusement Co. (Neb.), 248 N.W. 804; Magruder v. Columbia Amusement Co. (Ky.), 292 S.W. 341; Brown v. Reorganization Inv. Co. (Mo.), 166 S.W.2d 476; Nephler v. Woodward, 200 Mo. 179. (4) Instruction lettered "A" given on behalf of plaintiff was amply supported by evidence of constructive notice and properly submitted this issue to the jury. Cases under Points (1) and (2), supra.
This is an action for the recovery of damages for personal injuries suffered by respondent, a patron of defendant's theater, by reason of her being thrown to the floor when her foot was caught under a raised or cupped-up carpet edge as she attempted to leave her seat in the theater. Trial to a jury, verdict and judgment for $ 4500. Defendant appeals.
But two assignments of error are made: (a) The court erred in refusing to sustain appellant's demurrer at the close of all the evidence because "plaintiff failed to introduce any evidence showing that appellant had either actual or constructive knowledge of the presence of the loose or cupped-up condition of the carpet prior to plaintiff's fall, so that the appellant could have had an opportunity by the exercise of ordinary care to have remedied the alleged defect or warned the plaintiff of the same;" (Italics ours); (b) error in giving plaintiff's Instruction A.
The petition alleged different grounds of negligence but the only one involved on this appeal is the failure of the defendant to warn of a danger of which it knew or, in the exercise of ordinary care, could have known. In ruling the question of whether the demurrer should have been sustained, we must consider all the evidence in the most favorable light to plaintiff, and give her the benefit of all reasonable inferences to be drawn therefrom.
The record discloses that on October 12, 1940, defendant operated a picture theater in Kansas City and on that evening the plaintiff was a patron of said theater. She and her husband purchased tickets and went to the balcony. When they reached the balcony they entered an aisle which was about four feet in width and was carpeted and runs from the south to the north. The picture screen is on the west end of the theater so that patrons sitting in their seats faced the west. From the aisle that runs south to north there are other aisles that lead to the east and upward. The aisles that lead to the east and up are carpeted and are a series of steps with seats to the right and left of each step upward, except at the point where a patron leaves the main aisle. At that point there are four steps up before the patron reaches the first row of seats.
We are here concerned with aisle No. 2, counting from the south wall of the theater. When plaintiff and her husband reached the main aisle in the balcony they were met by one of defendant's ushers, Floyd Mock, who was equipped with a flashlight and, according to the testimony of defendant's assistant manager, it was his duty to conduct patrons to their seats and, among other things, "to be on the lookout for any defects there might be . . . and to warn . . . if he happens to see a defect." Mock, while taking plaintiff and her husband to aisle No. 2, preceded them by three or four steps and walked up the steps of aisle No. 2 in advance of them, stopped in front of the first row of seats on the north side of that aisle and directed his flashlight on the floor of the entrance to the aisle. Plaintiff's husband testified that the usher had reached a point in the aisle opposite the first row of seats and was standing facing north with his flashlight directed "right on the entrance of the row," when plaintiff and her husband started up the steps. That when she got within "about a step and a half of him" he stepped up and back and raised the flashlight some "so it would be flashed over her as we entered the row, and shone his light in the center of that first row." Concerning the same matter the plaintiff testified that as she walked up the steps to where Mock was standing he stepped up to another step and "raised the light indicating the seats he wanted us to take." She and her husband seated themselves in about the fourth and fifth seats from the south end of the first row. There were no other patrons in that row of seats.
In front of them was an iron railing to prevent anyone from falling from that position into the main aisle some three or four feet below. From photographs it appears that patrons entering as plaintiff did would leave the main aisle and walk up three steps to the east then turn facing north and take one step up into the aisle or passageway between the first row of seats and the iron railing. The carpet covering the steps upward laps or extends over into the passageway in front of the seats some eight to ten inches, the balance of the passageway is not carpeted. The carpet was about one-half inch thick. About ten minutes after plaintiff and her husband were seated, they decided to move and plaintiff walked...
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