Olsen v. Edgerly

• Decision Date: 07 February 1939
• Docket Number: 15954.
• Citation: Olsen v. Edgerly, 106 Ind.App. 223, 18 N.E.2d 937 (Ind. App. 1939)
• Parties: OLSEN et al. v. EDGERLY.
• Court: Indiana Appellate Court

18 N.E.2d 937

106 Ind.App. 223

OLSEN et al. v. EDGERLY.

No. 15954.

Appellate Court of Indiana, in Banc.

February 7, 1939

Jas L. Murray and Frank H. Fairchild, both of Indianapolis, for appellants.

Stark & Manifold, of Indianapolis, for appellee.

CURTIS Chief Judge.

The appellee filed her complaint in the trial court against the appellants who own and operate the Lyric Theatre in the city of Indianapolis, Indiana, for damages for alleged personal injuries sustained by her while a patron of said theatre. We quote the salient allegations of the complaint in so far as they are material to the decision herein as follows:

"Comes now the plaintiff in the above entitled cause and complains of the defendants and for cause of action alleges that said defendants are engaged in the operation of a theatre at 135 North Illinois Street, in the city of Indianapolis, State of Indiana, under the name and style of 'Lyric Theatre'.

"The plaintiff further alleges that said defendants operate said theatre for the purpose of making a profit from such business and that they may accomplish such business of making a profit the public, including this plaintiff, are invited to attend said theatre.

"Plaintiff further alleges that on the 9th day of September, 1935, this plaintiff purchased a ticket of the defendants' agent at the ticket window and entered the said theatre and went upstairs in said theatre.

"Plaintiff further alleges that after she arrived upstairs she waited for an usher to show her to a seat, and after waiting for quite a time for an usher to show her to a seat she attempted to find a seat without an usher to light her to a seat.

"Plaintiff further alleges that the upstairs or balcony in said theatre is so constructed that after arriving upstairs you must go up or down a flight of steps to find a seat.

"Plaintiff further alleges that the show was in progress and it was dark in the said theatre and the said defendants carelessly and negligently failed to have the steps lighted so that this plaintiff could see to walk down said steps to a seat without falling and in lieu of lights in said steps failed to furnish an usher to light this plaintiff down said steps to a seat.

"Plaintiff further alleges that because of the carelessness and negligence of the defendants in failing to have the steps properly lighted or to furnish an usher in lieu of said lights to light this plaintiff to her seat, this plaintiff was caused to fall on said steps and injure herself as follows, to-wit: Her back over her left kidney, left arm bruised, left leg bruised, left ankle sprained, one rib broken, back sprained, skin knocked off her back, and coat and clothing torn, all to the damage of this plaintiff in the sum of Five Hundred ($500.00) Dollars, all of which injury was caused by the carelessness and negligence of the defendants and without any fault or negligence on the part of this plaintiff."

To the complaint the appellants filed a motion to make more specific which was overruled, followed by a demurrer which was likewise overruled. The complaint was then answered in general denial. Upon the issues thus made the cause was submitted to a jury for trial, resulting in a verdict for the appellee in the sum of $225 upon which judgment was rendered. The appellants seasonably filed a motion for a new trial which was overruled and this appeal was then prayed and perfected. Neither the ruling on the motion to make the complaint more specific nor the ruling on the demurrer are questioned in this court. The motion for a new trial contained several causes or grounds but they are all expressly waived by the appellants except causes 1, 2 and 6. They are respectively as follows: 1st That the verdict of the jury is not sustained by sufficient evidence. 2nd That the verdict of the jury is contrary to law, and 6th That the court erred in refusing to give the appellants' requested peremptory instruction at the close of all of the evidence to return a verdict for the appellants.

The appellants defended the action upon the grounds that the aisle and theatre were reasonably lighted at the time and place where the appellee fell and that any injuries occasioned by the fall were the result of the contributory negligence of the appellee. The jury, by its verdict, found against the appellants upon both defenses. Upon the first ground of defense there was a complete conflict of evidence the appellee's evidence tending to prove that there was no lighting by which she could see the steps where she was moving and the appellants' evidence tending to show that the lighting was reasonably sufficient. The jury believed the evidence produced by the appellee and since this court cannot weigh conflicting evidence we are bound by the verdict of the jury wherein it concluded that the appellants were negligent in respect to the lighting at the place of the injury.

As throwing light upon the question of the claimed contributory negligence of the appellee we summarize the evidence produced by her. She, herself, testified in substance that on September 9th, 1935 she, in company with another lady, purchased tickets and went into the Lyric Theatre between three and four o'clock in the afternoon; that they went to the balcony because they liked it there and sat in a row of seats which is in a division between the upper and lower balcony; that there was an orchestra on the stage; that they sat there about ten or fifteen minutes and kept talking about an usher not coming and none came; that these seats were near the runway between the upper and lower balcony; that she had been to that theatre every week for almost fifteen years; that she had always been taken to a seat before by an usher with a flashlight; that there was a light showing on the orchestra from the upper balcony through the center of the theatre and that she looked through that light and saw some other seats; that they started down the steps of the aisle toward the other seats; that there was no light and it was so dark that she could not see the steps at all. We now quote from her evidence upon cross-examination as follows:

"Q. Could you see the step on which you were standing? A. I couldn't see anything and I thought I had been there often enough I thought I knew it and I guess I didn't. It was so dark I couldn't see anything.

"Q. Did you see the first two or three steps? A. No.

"Q. And you voluntarily continued on down the steps without the aid of an usher? A. There wasn't anyone there at all.

"Q. You voluntarily continued on down the steps that you couldn't see without the aid of an usher or any light? A. Yes".

Her evidence upon her direct examination was equally as positive as her cross-examination to the effect that the aisle where she was was totally dark under her feet. She also testified in substance that she had gotten down a few steps when her right foot missed the step and she fell, causing the personal injuries of which complaint is made; that after she fell an usher came with a flash light and that she told the assistant manager that if they had furnished an usher with a flash light the accident would not have occurred, to which he replied "I realize that"; that the arrangement of the balcony, the aisle and runway were the same, except for light, on the day of the injury as they had been before that time; that she had become impatient at not seeing any usher and by reason of that fact she attempted to go to the other seats without an usher's aid. Her companion testified that they sat in the first seats about ten minutes and then the appellee saw two seats further down and started down the aisle toward them, at which time the fall occurred; that the first seats they occupied were regular seats for patrons. Her evidence corroborated the evidence of the appellee as to the darkness in the aisle and as to the failure of any usher to seat them. In connection with her evidence as to changing seats we quote from her evidence as follows: "Q. You didn't make any attempt to get an usher? A. There wasn't any in sight. Always before they were standing at the head of the stairs".

From a reading of the complaint which we have previously set out one would conclude that after the appellee and her companion purchased their tickets on the day in question they proceeded into the balcony of the theatre which was dark and that in going to the seats the appellee fell and received her said...