Olsen v. John Hamrick's Tacoma Theatres

• Decision Date: 14 July 1941
• Docket Number: 28322.
• Court: Washington Supreme Court
• Parties: OLSEN v. JOHN HAMRICK'S TACOMA THEATRES.

115 P.2d 718

9 Wn.2d 380

OLSEN v. JOHN HAMRICK'S TACOMA THEATRES.

No. 28322.

Supreme Court of Washington

July 14, 1941

Department 1.

Action by Johanna M. Olsen against John Hamrick's Tacoma Theatres for injuries. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Appeal from Superior Court, Pierce County; Ernest M. Card, judge.

Ryan Askren & Mathewson and Meyer Horowitz, all of Seattle, for appellant.

Earl V Clifford, of Tacoma, for respondent.

STEINERT, Justice.

Plaintiff brought suit to recover damages for injuries sustained by her in consequence of stumbling and falling on a step inside the auditorium of a moving picture theater which was owned and operated by defendant. The action was tried to the court, without a jury, and resulted in findings, conclusions and judgment in favor of plaintiff. Defendant appealed.

The evidence upon which the court based its findings is practically without dispute, and may be summarized as follows: On the evening of January 28, 1940, respondent, Johanna M. Olsen, a woman sixty-seven years of age, attended one of appellant's moving picture theaters in Tacoma. She was accompanied at the time by her two adult sons. After paying the price of admission, the party of three proceeded through the lobby of the theater and entered the main auditorium at its right center aisle. Being unable to find a place where they could all sit together, they sought separate seats. An usher thereupon conducted respondent to the rear row of seats on the right-hand side of the aisle, where the second seat from the aisle was found to be vacant.

The chairs in the rear row, with which row we are here particularly concerned, were each twenty-one inches in width, and were constructed upon a platform approximately thirty-six inches wide and elevated about eleven inches above the aisle floor. The backs of the chairs in the row just ahead slanted backwards somewhat, leaving a space of only about five and one-half inches between the front edges of the rear row of seats, when lowered for occupancy, and an imaginary vertical plane having its upper line coincident with the tops of the back rests of the chairs in the second row.

Access from the aisle to the platform upon which the rear row of seats stood was has by means of a short stairway consisting of two steps, the first, or lower, step being at the edge of the aisle, and the second, or upper, step being level with, and forming a part of, the platform. The first, or lower, step had been constructed by cutting away a nine-inch strip from that portion of the platform which was underneath, and in front of, the seat nearest the aisle; that step is referred to, in the testimony, as the 'cut-in' step. Thus, the twenty-one inch floor space in front of the first chair in the rear row was of irregular shape, and of unequal distances from the bottom of the seat. The inner twelve inches of that space formed a corresponding portion of the surface of the platform, and the remaining, or outer, nine inches composed the tread of the step adjoining the aisle.

The 'cut-in' step was painted white, and was illuminated by two aisle lights shining directly upon it from underneath the first seat. The light was sufficient to attract the attention of one entering the back row, but to one making an exit therefrom sidewise, as one would be required to proceed on account of the limited space between the two rows, the light and the painted step underneath would be obscured if the seat nearest the aisle were occupied, particularly so if the occupant of that seat were a woman.

At the time that respondent entered the theater, the exhibition was in progress, and the auditorium was, of course, darkened. The usher who conducted respondent to the back row of seats indicated the location by means of a flashlight, and instructed respondent to 'step up.' Respondent entered the row as directed, and took the second seat from the aisle, the first seat being occupied by another woman.

From the description as heretofore given, it will be observed that the portion of the platform which constituted the floor space underneath and immediately in front of respondent's chair, and for an additional distance of twelve inches to her left, was uniformly level and regular, but beyond that point, and in the vicinity of the aisle, there was a total, though divided, drop of about eleven inches, made by the 'cut-in' step.

Although respondent had frequently attended various attractions at the theater, over a period of years, she had never Before sat in the rear portion of the auditorium.

About fifteen or twenty minutes after respondent had taken the seat assigned to her, a patron sitting several rows forward vacated his place, and respondent desiring to obtain a better view of the screen, arose with the intention of taking the vacated seat ahead. In making her exit from the rear row, she grasped hold of the top of the chair in front of her and moved sideways toward the aisle, as she was compelled to do in order to pass in front of the woman who was occupying the end seat.

Respondent was aware of the fact that she would have to step downwards, at some point, in order to get into the aisle, but was under the impression that the step down was at the edge of the aisle rather than at the place where it actually was, nine inches from the aisle. She could not see the painted step or the light reflected upon it, because of the woman who occupied the first seat. In her testimony, respondent stated several times: 'The step came too fast for me. I looked for the step, but could not see it.'

Reaching the edge of the 'cut-in' step sooner than she expected, respondent stumbled and fell into and across the aisle, striking her head and left shoulder against the corresponding step on the opposite side, and sustaining the injuries for which this action was brought.

At the conclusion of the evidence, the trial judge, upon appellant's request, viewed the premises in question and made a close examination of the seats, steps, and platform involved in the present controversy. In a memorandum opinion subsequently written, the trial court, after describing the conditions in detail, concluded that the 'step-off' was dangerous in itself and that the owner was negligent in maintaining it.

Thereafter, the court made formal findings, of which we quote the two bearing specifically upon the principal issues presented at the trial and upon the main contentions advanced upon the appeal:

'V. That the step-off was deceptive in that it was at a place where a step would not be expected and while well lighted so as to attract the attention of one entering the back row, the painting and lighting were clearly insufficient to attract the attention of one who would naturally face the back of the seats in front and work past another patron seated or standing, as plaintiff [respondent] did; the light would be cut off when the seat at the step-off was occupied by a woman as the evidence shows it was in this case; a patron, such as the plaintiff, desiring to exit to the aisle from the back row would not anticipate the step-down Before the end of the row and aisle was reached; the step-off was of unusual height for a busy theater; this step-off was dangerous in itself and the defendant [appellant] was negligent in maintaining it.

'VI. The plaintiff came in by the steps in question, and in leaving intended to step down at the end of the row of seats; however, the position of the cut in step-off was so deceptive that the plaintiff was not guilty of negligence contributing to her injury.'

Upon appeal, appellant contends that the trial court erred in three respects: (1) In holding that appellant was negligent in the maintenance of the step in question; (2) in holding that respondent was not guilty of contributory negligence; and (3), in fixing the amount of the damages at $1200.

We preface our discussion of the assignments of error by referring to the well-known rule that in a case tried to the court, its findings of fact are to be accepted as verities, unless from the record it appears that they are contrary to the clear preponderance of the evidence. Warner v. Keebler, 200 Wash. 608, 94 P.2d 175; Gensman v. West Coast Power Co., 3 Wash.2d 404, 101 P.2d 316; Evans v. Hartmann, 5 Wash.2d 434, 105 P.2d 717; Winston v. Bacon, Wash., 111 P.2d 764.

That rule is particularly applicable in a case where, as here, the trial court was not restricted to visualization of the premises from descriptions given by the witnesses, but, in addition had the benefit of personal observation, examination, and test of the particular equipment while in normal use. Judson v. Tide Water Lumber Co., 51 Wash. 164, 98 P. 377.

We now take up appellant's contentions in the order given, dealing first with the question of appellant's negligence.

It is a universally accepted rule that the proprietor of a place of public amusement, such as a theater, is required to exercise ordinary or reasonable care to put and maintain the premises, appliances, equipment and devices which he devotes to such place of amusement in a reasonably safe condition for his patrons and if he fails to exercise such care he may be held liable to the patron injured thereby. 62 C.J. 863, § 46; 26 R.C.L. 713, § 14; Notes (1923) 22 A.L.R. 610, 670, (1924) 29 A.L.R. 29, 33, (1935) 98 A.L.R. 557, 577. This court is in accord with that rule. Hollenbaek v. Clemmer, 66 Wash. 565, 119 P. 1114, 37 L.R.A.,N.S., 698.

'Ordinary or reasonable care' is always a relative term, and no absolute test can be postulated for the government of each and every situation or condition ...