Myers v. Kansas City Junior Orpheum Co.

• Decision Date: 02 July 1934
• Parties: MARVEL LUCILLE MYERS, RESPONDENT, v. KANSAS CITY JUNIOR ORPHEUM COMPANY, APPELLANT
• Court: Kansas Court of Appeals

73 S.W.2d 313

228 Mo.App. 840

MARVEL LUCILLE MYERS, RESPONDENT, v. KANSAS CITY JUNIOR ORPHEUM COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

July 2, 1934

Appeal from Circuit Court of Jackson County.--Hon. A. Stanford Lyon Judge.

Judgment affirmed.

Calvin Vandeventer & Kimbrell for respondent.

Harding Murphy & Tucker for appellant.

OPINION

TRIMBLE, J.

Prior to and since January 13, 1929, defendant has operated in Kansas City, Missouri, what is known as the "Main Street Theater." On that date, about 7:30 P. M., plaintiff entered said theater as a patron in company with her husband and mother-in-law, and after tickets to the evening show had been purchased, she with her said companions stood in the lobby waiting until the first show was over and the audience had come out, so that they might obtain seats on the main floor for the second presentation of said show. While so standing in the lobby she was next to a plush rope stretched across the lobby to keep the crowd from entering the theater auditorium until the management of the theater was ready for the assembled and waiting patrons to do so.

Plaintiff claims that the pressure of the assembling crowd finally became so great that she was unable to escape from her position and was pushed or forced against said rope across her abdomen and finally was bent over it and either fell or was thrown to the floor. She was several months advanced in pregnancy and pleads that she was thereby caused to undergo a miscarriage.

She brought this suit for damages alleging, as the grounds of her cause of action, that on the date and hour, and with the companions aforesaid, she entered the lobby and purchased tickets as stated, whereupon defendant through their ushers undertook to seat her, but--

"That on January 13, 1929, she, having paid the defendants their regular charge for admission, was permitted by the defendants to, and she did, enter the same, whereupon the defendants, through their ushers, agents, servants and employees, undertook to seat her therein, so that she might, comfortably, witness the performances which they were then and there presenting to their patrons and the public, generally.

"That, owing to the fact that the defendants had, prior to her admission into said theatre, allowed and permitted a great number of their patrons to enter and be seated therein, there were not, at the time she was permitted to enter the same, as aforesaid, any seats available for her or many others of their patrons, whom defendants had theretofore and then permitted to enter the lobby of said theatre, for the purpose of later witnessing the performance which the defendants were then and there conducting therein, as aforesaid; and, by reason thereof, she, together with other of defendants' patrons, was compelled to, and she did, for a time, remain standing in the lobby of said theatre, and in close proximity to and against a rope, or chain, which the defendants had theretofore stretched across the entrances into the aisles of said theatre, and which they were then and there maintaining in said position, for the purpose of preventing their patrons from entering that part of their theatre which was provided with seats for their patrons until such time as they might order and direct, through their ushers, agents, servants and employees, to remove such rope, or chain, and to permit such number of their patrons as might then be accommodated with seats therein to enter said aisles, and that part of their said theatre which was provided with seats, as aforesaid.

"That, while and as she was standing in the lobby of said theatre, as aforesaid, and in close proximity to and against said rope, or chain, as aforesaid, the defendants, their agents, servants and employees, notwithstanding said lobby was already filled to its capacity, and congested, with their patrons, carelessly and negligently caused, allowed and permitted a large and additional number of their patrons to enter the lobby of said theatre, crowding the same both to its capacity and to the point of overflowing, by reason of which certain of their patrons, who were standing in close proximity to her, were so pushed and swayed by the crowd, which was then occupying the lobby of said theatre, that they were, with great force and violence, caused to, and they did, bear down upon her, forcing her against said rope, or chain, which was in turn drawn tightly across her abdomen, and over which she was finally, and by reason of the great pressure from the said crowd, forced to bend, finally being crushed to the floor of said lobby.

"That, as a direct result and consequence thereof, her abdomen was so bruised and strained, and the pressure thereon so great, that she was then and there caused to, and she did, suffer both great bodily pain and mental anguish, and became, and was, so terrified at the thought that she was about to receive severe personal injury, by reason of the overcrowded condition of said lobby, that she suffered a severe and general nervous shock; and, as a direct result and consequence of the physical injury and nervous shock which she sustained, as aforesaid, she, being at said time enceinte, was caused to, and she did, undergo a miscarriage; and, as a direct result and consequence thereof, she was caused to, and she did, suffer both great bodily pain and mental anguish, was for a long time confined to her room and to her bed, was for a time prevented from performing any of the duties incident to her employment; and, on account of her aforesaid injuries, and as a direct result and consequence thereof, her general health, her bodily strength and its youthfulness have become, and they are, seriously and permanently weakened and impaired."

Wherefore judgment was prayed for $ 3000.

Defendant's amended answer (date of filing not stated in the abstract), contained first a general denial, next a plea of negligence on her part in that she failed to exercise ordinary care for her own safety, and then, for further answer, alleged that--

"At said time and place referred to in plaintiff's petition, it was usual and customary for patrons of said theatre to assemble in the lobby of said theatre referred to in plaintiff's petition; that when said plaintiff entered said lobby and became a part of the crowd there assembled awaiting entrance into said theatre proper, she did so at her own risk, and assumed all the risk incidental to her act of placing herself in and becoming a part of the crowd there assembled, and this defendant states that it is in no way liable or responsible for such injuries, if any, that may have been suffered by said plaintiff by reason of the foregoing."

A trial was thereupon had resulting in a verdict for plaintiff in the sum of $ 2500 upon which a judgment was rendered, and defendant appealed.

At the close of the opening statement by counsel for plaintiff, defendant's counsel orally moved for judgment for defendant on said opening statement, which was overruled, the defendant excepting.

Lawrence Myers, husband of plaintiff, testified that he and plaintiff were married June 9, 1928, and they in company went with his mother to the defendant's theater about 7:30

P. M., of January 13, 1929; that a show was in progress when they reached the theater, and he asked the "doorman" how long before they could be seated, and he replied "about ten minutes." Witness thereupon bought three tickets and he, with his wife and mother, passed into the lobby. As they went into the lobby there was "quite a number" of patrons already in there. Witness identified a diagram of the entrance to the theater showing the outside door to be at the northeast corner of the building and immediately inside was Lobby No. 1 with the ticket seller's cage against the west wall thereof, and after obtaining tickets there, the purchasers passed the cage into a room west of it, where the ticket taker stood at his place at a point a few feet west of where they passed the ticket seller's cage, and after delivering their tickets to him, they were ushered into Lobby No. 2. It was cold and only one door opened into Lobby No. 2. Along the south side of Lobby No. 2 were doors opening into the ground floor auditorium of the theater. These however were locked and kept so until the management was ready to open them and permit waiting patrons to enter the show. At the west end, but outside of Lobby No. 2, was a stairway leading up to the balcony overlooking the auditorium and stage in which, of course, were seats for those in the balcony who could see the show. Whether or not there were vacant seats there at this time, does not appear. Along the north line of Lobby No. 2 were exits leading out to the street, and about a third of the width of Lobby No. 2 south of the north line of said lobby defendant had a rope stretched from the east to the west end and attached to the wall by hooks. Witness said this rope was "a big massive affair--it has to be to hold that group of people." This rope is where people were stopped until the management wanted to let them into the auditorium or theater proper.

Witness Myers further testified that after the accident to his wife, he helped the usher to unhook this rope; and the pressure of the people against the rope was so great that it took the combined weight of both of them, about 280 pounds, to pull on the rope in order to get it unhooked. His wife's position at this time was that she was "bent double over the rope, over her adomen, and right over it." Witness thought one other woman was over it, but on motion the court struck this out. After the rope was unhooked "it let my wife and this other woman down to the floor and the rest of the people surged over them and into the theater."

Witness...