Oakley v. Richards, NO. 19170.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Blair
• Citation: 275 Mo. 266,204 S.W. 505
• Parties: OAKLEY v. RICHARDS et al.
• Docket Number: NO. 19170.
• Decision Date: 04 June 1918

204 S.W. 505 275 Mo. 266 OAKLEY
v.
RICHARDS et al. NO. 19170. Supreme Court of Missouri, Division No. 1. June 4, 1918. Motion to Transfer to Court in Banc and Rehearing Denied July 5, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Mina M. Oakley against Ernest E. Richards and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Park & Brown, of Kansas City, for appellants. M. T. Prewitt and Hogsett & Boyle, all of Kansas City, for respondent.

BLAIR, J.

This is an appeal from a judgment respondent recovered for damages for injuries she received from falling when she attempted to pass from her seat into the aisle of a moving picture theater owned and operated by appellants. The evidence conflicts. That for respondent tends to show the theater was quite dark. She was unable to see the floor at her feet. She could see, merely as a dark object, her companion, who preceded her into the aisle. She left her seat and walked toward the aisle. As she did so she held to the back row of seats in front of her. The seats were upon a platform or floor, which at the end of the row in which respondent had been seated was four inches above the level of the aisle. As respondent attempted to enter the aisle, her heel was caught or placed upon the edge of the floor upon which the seats stood, and she lost her balance and fell. She was seriously injured. She had not previously visited the theater. There is no dispute that patrons were invited to enter and leave, and did enter and leave, the theater at will during performances. Numerous errors are assigned. Other facts can best be stated in connection with the particular questions to which they are relevant.

I. It was the duty of appellants to use ordinary care to see that the place to which they invited their patrons was reasonably safe for use for the purposes for which it was designed. Hollis v. Merchants' Ass'n, 205 Mo. loc. cit. 520, 103 S. W. 32, 14 L. R. A. (N. S.) 284. The jury was warranted in finding that respondent's fall was due to her inability to see the step-off on account of the darkness in the theater. "It is a matter of common knowledge" that a four-inch depression in a floor "is sufficient to cause one to fall" who, in the absence of light and knowledge

204 S.W. 506

of its presence, steps into or upon the edge of it. New Theater Co. v. Hartlove, 123 Md. loc. cit. 86, 90 Atl. 990. It is not contended the presence of the step-off, alone, was negligence. It was the absence of light sufficient to enable respondent to see the depression which brought about her fall. The evidence was sufficient to warrant a finding of negligence. Valentine Co. v. Sloan, 53 Ind. App. loc. cit. 71, 101 N. E. 102; New Theater Co. v. Hartlove, 123 Md. 86, 90 Atl. 990, supra; Andre v. Mertens, 88 N. J. Law loc. cit. 628, 96 Atl. 893; Marwedel v. Cook, 154 Mass. 235, 28 N. E. 140; Little v. Holyoke, 177 Mass. loc. cit. 116, 58 N. E. 170, 52 L. R. A. 417; Faxon v. Butler, 206 Mass. loc. cit. 504, 92 N. E. 707, 138 Am. St. Rep. 405, 19 Ann. Cas. 666; Marston v. Reynolds, 211 Mass. loc. cit. 592, 98 N. E. 601; Nephler v. Woodward, 200 Mo. 179, 98 S. W. 488; Camp v. Wood, 76 N. Y. loc. cit. 95, 32 Am. Rep. 282; Currier v. Music Hall, 135 Mass. 414. Appellants rely upon cases holding that steps and stairways of ordinary construction are reasonably safe when used as means of overcoming differences in level. They do not decide the question in this case. Little v. Holyoke, 177 Mass. loc. cit. 116, 58 N. E. 170, 52 L. R. A. 417. Peck v. Yale Amusement Co., 195 S. W. 1033, is cited. In that case the evidence failed to show what caused the injury. Mrs. Peck was familiar with the stairway, and the light was like that usually found in moving picture theaters. In attempting to use a properly constructed stairway, of the presence of which she had previous knowledge, she fell, and from her evidence "no court could say just what did cause her fall." That case is not in point. The question of negligence in this case was for the jury.

II. The question of contributory negligence was for the jury. The passage between the seats led into the aisle is a means of egress. Seeing others use the aisle, and invited to use it herself, "can it be said, as a matter of law, that a person seeking to leave a public theater, and following the only path leading to an exit, should apprehend that that path contained an unsafe place or pitfall, or the like?" Branch v. Klatt, 165 Mich. loc. cit. 671, 131 N. W. 107. In the same case it is said that:

"The very fact of the premises being maintained in a darkened condition might give added assurance of its being reasonably safe."

The evidence fairly supports a finding against contributory negligence. New Theater Co. v. Hartlove, supra; Andre v. Mertens, supra; Nephler v. Woodward, 200 Mo. loc. cit. 188, 98 S. W. 488; Lewis v. Shows Co., 98 Kan. loc. cit. 148, 157 Pac. 397; Marston v. Reynolds, supra; Faxon v. Buyer, supra; Marwedel v. Cook, supra.

III. The petition originally counted on (1) common-law negligence, and (2) violation of section 156 of the Building Code. The answers pleaded at length Ordinance No. 7667, which purports specifically to regulate, in some respects, moving picture shows. It contains this provision:

"No steps shall be permitted in any aisle or in any part of the auditorium floor, except by written permission of the superintendent of buildings and fire warden."

The answers averred this ordnance repealed section 156 of the Building Code in so far as it applied to moving picture shows. They also averred the building was inspected and approved by the superintendent of buildings and fire warden, and subsequently a license to conduct the show was issued. Appellants offered evidence tending to show the plans for remodeling...