Pfeifer v. Standard Gateway Theater

• Decision Date: 15 June 1951
• Citation: 48 N.W.2d 505,259 Wis. 333
• Parties: PFEIFER et al. v. STANDARD GATEWAY THEATER, Inc.
• Court: Wisconsin Supreme Court

Page 505

48 N.W.2d 505

259 Wis. 333

PFEIFER et al. v. STANDARD GATEWAY THEATER, Inc.

Supreme Court of Wisconsin.

June 15, 1951.

An action to recover for personal injuries sustained by Robert Pfeifer was commenced by George T. Pfeifer, guardian ad litem, and by George T. Pfeifer, individually, against Standard Gateway Theater, Inc., a foreign corporation. The court directed a verdict against plaintiffs and entered judgment on October 7, 1950, dismissing plaintiffs' complaint and awarding costs to defendant in the sum of $162.48.

On Sunday afternoon, November 21, 1948, between the hours of 3:00 and 5:00 P.M. plaintiff, Robert Pfeifer, who was about eleven years old, attended the Geneva Theater. He occupied a seat about five rows back from the front on the right side. According to Robert's testimony about five older boys were throwing popcorn boxes and shooting paper wads by means of rubber bands at the time he arrived. One of the witnesses testified that this had been going on for some time before Robert entered the theater. Before Robert saw the entire show, at about 5:00 P.M., he felt something hit his right eye. He lost his vision in that eye and went home after telling the ticket girl about it. The eye was bloodshot and Robert's father immediately took him to the doctor's office.

The manager, together with the vendette, doorman, cashier and projectionist, had been on duty during the afternoon; the manager left the theater between four and five o'clock. According to his testimony, the aisles had been patrolled that day by himself, the doorman and the vendette. No ushers were employed at the theater that day. There is dispute in the testimony as to the patrolling of the aisles; Robert testified that he did not see the manager in the theater that day and did not see any theater employee or any one in uniform walk up and down the aisles. There was other testimony that the aisles were not patrolled between 4:00 and 5:00 P.M.

Kenney, Korf & Pfeil, Elkhorn, for appellant.

Cavanagh, Mittelstaed, Sheldon & Heide, Kenosha, for respondent.

GEHL, Justice.

We consider that the testimony presented an issue for the jury. The duty of the defendant theater owner is stated in 2 Restatement, Torts, sec. 346, page 949: 'A possessor of land is subject to liability to others who are privileged to enter it for a public or private purpose, irrespective of his consent, for bodily harm there caused to them by his failure, after he knows or from facts within his knowledge should know of their presence on the land, to conduct his activities thereon with reasonable care for their safety.'

The testimony of plaintiff and other witnesses that the boys in the theater had been throwing things about the theater when he entered and while he was in attendance the dispute in the testimony as to whether such acts had been observed by defendant's employees, and the question whether they had taken reasonable means to protect the other patrons of the theater against the conduct of the boys, were sufficient to make an issue as to whether the defendant had violated the quoted rule.

"The obligation of those who collect numbers of people in one place, for gain and profit, to be vigilant in their efforts to protect such people, has long been recognized.' Platt v. Erie County Agricultural Society, 164 App.Div. 99, 149 N.Y.S. 520, 523; Tantillo v. Goldstein Brothers Amusement Co., 248 N.Y. 286, 290, 162 N.E. 82. * * *

'When one assembles a crowd or a large number of people upon his property for purposes of financial gain to himself he assumes the responsibility of 'using all reasonable care to protect the individuals from injury from causes reasonably to be anticipated.' In the exercise of this duty it is incumbent upon him to furnish a sufficient number of guards or attendants and to take other...