Nephler v. Woodward

• Decision Date: 21 November 1906
• Citation: 98 S.W. 488
• Parties: NEPHLER v. WOODWARD et al.
• Court: Missouri Supreme Court

98 S.W. 488

NEPHLER v. WOODWARD et al.

Supreme Court of Missouri. Division No. 1.

November 21, 1906.

1. THEATERS AND SHOWS—INJURIES TO PATRONS —VERDICT—EVIDENCE.

In an action for injuries to a patron of a theater by an alleged defect in an aisle carpet, evidence held insufficient to show that a verdict for plaintiff was the result of passion or prejudice.

2. NEGLIGENCE—TRIAL—INSTRUCTIONS.

Where, in an action for injuries to a theater patron by an alleged defect in an aisle carpet, the court correctly defined "ordinary care" in a separate instruction, an instruction that plaintiff was entitled to recover, other facts being found, if she herself was exercising ordinary care at the time, was not erroneous for failure to define "ordinary care" as applicable to plaintiff's conduct.

3. THEATERS AND SHOWS—INJURIES TO PATRONS —CONTRIBUTORY NEGLIGENCE.

Where plaintiff was injured by catching her foot in a hole in a theater aisle carpet as she was being shown to her seat by an usher, she was not negligent in failing to look out for holes in the carpet, in the absence of any warning that they existed; she being entitled to presume that it was safe to follow the usher.

4. TRIAL—INSTRUCTIONS—CURING OMISSIONS.

Plaintiff was injured by catching her foot in a hole in a theater aisle carpet. The court charged that if defendants negligently permitted a hole to remain in the carpet, and the theater was dimly and improperly lighted along the aisle, which was rendered unsafe to persons attempting to pass over the hole in order to reach seats, and the aisles were dangerous, etc., to defendant's knowledge, plaintiff was entitled to recover. Held, that such instruction was correct so far as it went, and the omission to require that the condition of the carpet before the accident must have been such that defendants, by the exercise of ordinary care, could have foreseen the probable danger, was cured by another instruction that negligence was not the proximate cause of an accident, unless, under all the circumstances, the accident might have been reasonably foreseen by a man exercising reasonable and ordinary care, etc.

5. THEATERS AND SHOWS—INJURIES TO PATRONS —NEGLIGENCE—INSTRUCTIONS.

Where, in an action for injuries to a theater patron by catching her foot in a hole in an aisle carpet, the only evidence as to the length of time the hole had existed was that of a witness who stated that he had caught his foot in the hole a week or two weeks before the accident, an instruction that it was defendants' duty to keep every part of the theater used by the patrons thereof in going and coming from the seats in a reasonably safe condition was not objectionable as holding defendants liable, though the hole had occurred so shortly before the accident that defendants could not possibly have discovered it.

6. APPEAL—INSTRUCTIONS—PREJUDICE.

In an action for injuries to a theater patron by catching her foot in a hole in an aisle carpet, defendants were not prejudiced by an abstract instruction that they were bound to keep every part of the theater used by patrons in a reasonably safe condition.

7. PARTNERSHIP — ACTIONS AGAINST FIRM — PROOF OF PARTNERSHIP — AFFIDAVIT — ISSUES.

Where, in an action against a firm, there was no affidavit filed with the pleadings in the cause denying the partnership, as required by Rev. St. 1899, § 746, the fact of partnership was not in issue.

8. TRIAL — INSTRUCTIONS — ISSUES — REFUSAL OF REQUESTS.

Where the issues that were tried were sufficiently defined in the instructions given, the court did not err in refusing an instruction which was, in substance, a copy of the petition and answer designed to present the issues.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Sallie Nephler against O. D. Woodward and others. From a judgment for plaintiff, defendants appeal. Affirmed.

E. M. Bartlett and Thomson, Stanley & Price, for appellants. John Welborn and Robert E. Rooney, for respondent.

VALLIANT, J.

Plaintiff alleges that defendants were proprietors of a theater in Kansas City; that plaintiff, with a party of friends, attended a theatrical performance at defendants' theater on the afternoon of April 15, 1899; that as she was passing down one of the aisles to the seat that she was to occupy her foot was caught in a hole in the carpet in consequence of which she fell, striking her left side against one of the theater chairs and received severe injuries to her person. The petition alleges that the theater was dimly and not sufficiently lighted, and that the hole in the carpet and the insufficient light made the condition dangerous to persons attending the performance as plaintiff was, and that the defendants knew, or, by the exercise of ordinary care would have known, the condition a sufficient length of time before the accident to have remedied it, but neglected to do so. The answer was a general denial, and a plea that any injury or damage the plaintiff may have suffered was the result of her own fault, want of care, and negligence. Reply general denial. The testimony on the part of the plaintiff tended to prove that she and three of her female friends, having purchased their tickets to the matinee performance, attended the theater and were being shown to their seats by the usher; that as the plaintiff was passing down the aisle, which was an inclined floor, her left foot was caught in a hole in the carpet, which caused her to trip, and she fell, striking her left side violently on the iron arm of the chair; that she was rendered sick immediately, but remained in the theater during the performance, and when it was over was assisted to walk to the home of a friend, where she remained until about 8 o'clock that evening, then walked home, and went to bed, suffering great pain and applying home remedies; that this was a Saturday, and she called in a physician the next Monday; that from the day of the accident to the day of the trial she had been an invalid, with great suffering, had been subjected to a very serious surgical operation, and her injuries were permanent. A witness for plaintiff testified that he had caught his foot in the same hole and tripped a week or two before the plaintiff's accident. Plaintiff's testimony also tended to show that the light had not been fully turned on when she fell and the light was dim. The accident occurred April 15, 1899. The suit was brought November 8, 1902. On the part of defendant the testimony tended to show as follows: About three months before the alleged accident the theater had been burned out, rebuilt, and entire new furniture and new carpets had been put in. On the aisle in question there was a new ingrain carpet, the ordinary wear of which for such use was two or three years. The defendants had never heard that there was any hole in this carpet, and there was no hole in it. The theater was brilliantly lighted with electric lights, which were fully turned on before the doors were opened or the people began to arrive. Defendants never heard of the alleged accident until this suit was brought, more than three years after it is alleged to have occurred. Defendants' testimony also tended to prove that the plaintiff's physical condition on which she predicated claim for damages was not the result of the alleged accident, but of disease of which she was suffering before. The suit was begun in Jackson county and taken by change of venue to Lafayette county, where there was a trial resulting in a judgment for plaintiff for $5,000, from which defendants appeal. The assignments of error are based on the action of the court in giving certain instructions for the plaintiff and refusing certain others requested by the defendants; also in overruling the motion for a new trial.

1. At the close of the plaintiff's case, and again at the close of all the evidence, the defendants asked instructions in the...