Perry v. Loew's Boston Theatres Co.

• Decision Date: 01 July 1935
• Citation: 291 Mass. 332,197 N.E. 54
• Parties: PERRY v. LOEW'S BOSTON THEATRES CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 332

197 N.E. 54

PERRY v. LOEW'S BOSTON THEATRES CO.

Supreme Judicial Court of Massachusetts, Norfolk.

July 1, 1935

Exceptions from Superior Court, Norfolk County O'Connell, Judge.

Action of tort by Eleanor L. Perry against the Leow's Boston Theatres Company. Verdict for plaintiff for $1,396, with leave reserved, the court ordering entry of a verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

H. W. Ogden, of Boston, for plaintiff.

J. F. Cavanagh, of Boston, for defendant.

LUMMUS, Justice.

This is an action of tort for alleged negligence brought by a theatregoer against a theatre owner. Tovey v. G. E. Lothrop Theatres Co. (Mass.) 193 N.E. 19. After the return of a verdict for the plaintiff, the judge reserved leave under G. L. (Ter. Ed.) c. 231, § 120. The bill of exceptions asserts that the judge then allowed a motion that ‘ judgment be entered for the defendant non obstante veredicto.’ We infer that what actually happened was merely that the judge entered a verdict for the defendant under the reserved leave. Goetze v. Dominick, 246 Mass. 310, 140 N.E. 802; Karlowski v. Kissock, 275 Mass. 180, 175 N.E. 500. The exception of the plaintiff to this action presents the only important question of law. That question is, whether there was evidence to warrant the verdict for the plaintiff.

The following was the evidence to support the verdict. On January 3, 1931, in the afternoon, the plaintiff and her fourteen year old son bought tickets and entered the balcony of the theatre, which was pretty well filled. Entering by an aisle which ran across the balcony a considerable distance from the front, they found seats at the level of that aisle. The son did not sit down, for the plaintiff sent him to ask an usher, who was standing some distance away, to show them to seats farther front, where they could get a better view. Ushers had been instructed to aid patrons in finding seats, and to use a flashlight to light the way or patrons down stairs. The son did as directed, but the usher answered, ‘ Find your own seats.’ Apparently the son returned and reported the conversation to the plaintiff.

From the aisle where the plaintiff was sitting, stairs led down to the front of the balcony. The light was dim, most of it coming from the stage, where a vaudeville performance was in progress. The plaintiff saw two seats being vacated in the front part of the balcony, and sent her son to hold them. She saw him go down the stairs, and stand beside the vacant seats. Then...