Phoenix Amusement Co. v. White

• Decision Date: 20 January 1948
• Parties: PHOENIX AMUSEMENT CO. v. WHITE.
• Court: Kentucky Court of Appeals

208 S.W.2d 64

306 Ky. 361

PHOENIX AMUSEMENT CO. v. WHITE.

Court of Appeals of Kentucky

January 20, 1948

Appeal from Circuit Court, Bourbon County; William B. Ardery, Judge.

Action by Elizabeth White against the Phoenix Amusement Company, a corporation, for personal injuries sustained as the result of falling down stairs leading from emergency exit doors of defendant's theater to the street. Judgment for plaintiff, and defendant appeals.

Reversed.

William T. Baldwin, of Paris, and Stoll, Muir Townsend, Park & Mohney, of Lexington, for appellant.

Raymond Connell, of Paris, for appellee.

SIMS Chief Justice.

Appellee Mrs. Elizabeth White, recovered judgment against appellant Phoenix Amusement Company, in the sum of $800 for personal injuries averred to have been received when she was pushed through emergency exit doors by reason of appellant's alleged negligence in permitting its theater to be overcrowded and in permitting the exit doors to be unfastened and to open directly upon a flight of stairs, instead of opening upon a platform or landing as required by Safety Regulations prescribed by the Director of Insurance. Appellant in asking that the judgment be reversed insists: 1. It was entitled to a directed verdict. 2. The instructions are erroneous. 3. The verdict is excessive. 4. It was entitled to a continuance on account of an absent witness. 5. The jury should have been discharged when appellee testified a representative of an insurance company took a statement from her.

On February 3, 1946, Mrs. White, accompanied by her young son, attended appellant's theater in Paris about 3 o'clock in the afternoon. The house was crowded and upon being unable to obtain a seat, she with a couple of friends, Mrs. McCann and Mrs. Myers, stood in the rear in a place usually occupied by patrons unable to obtain seats. Mrs. White and the other two ladies were standing in the far end of this space near emergency exit double doors leading from a side aisle onto Eighth Street. While this theater was on the ground floor, these exit doors were not flush with Eighth Street, but opened upon a flight of stairs consisting of five steps leading to the sidewalk, instead of opening upon a landing as required by Safety Regulations § 800(11) prescribed by the Director of Insurance under KRS 227.060.

These exit doors were of an approved type known as 'panic doors' which open when sufficient pressure is applied. There is no evidence that these doors were unbolted or unfastened when the theater opened at 12:45 P.M., that day, or when they became unbolted, or that the company had notice that they were in that condition.

The evidence is not clear as to just what caused Mrs. White to fall through the exit door. Nobody pushed or shoved her. It appears that some person touched Mrs. White, and her two companions, Mrs. Myers and Mrs. McCann, moved in the direction of the doors and Mrs. White stepped back against one of the doors which opened and she fell through it onto Eighth Street, which she testified caused her to receive painful injuries.

The rule is that while proprietors of places of public entertainment must exercise ordinary care, commensurate with the use to which the premises are put, they are not insurers of their patrons' safety. Babb v. Crescent Amusement Co., 266 Ky. 382, 99 S.W.2d 199; Sidebottom v. Aubrey, 267 Ky. 45, 101 S.W.2d 212; Annotations 98 A.L.R. 557. The law places no duty on proprietors of amusement places to prevent overcrowding of their premises but it only requires them to guard against danger likely to arise therefrom. Thurber v. Skouras Theatres Corp., 112 N.J.L. 385, 170 A. 863; Klish v. Alaskan Amusement Co. 153 Kan. 93, 109 P.2d 75; Prigden v. S. H. Kress Co., 213 N.C. 541, 196 S.E. 821.

There might have been an overcrowding of the theater, but the evidence does not show the crowd was shoving, or was boisterous or disorderly in any manner so as to give the proprietor of appellant, or any of its employees, notice on this occasion that injuries might befall any of its patrons by reason of the overcrowded condition of the house. We think the testimony in this record clearly shows that no prudent person could have foreseen that Mrs. White, as the result of the overcrowded condition of the theater, would suffer the accident which happened to her. It was not incumbent upon appellant to anticipate that the crowd might injure Mrs. White or any of its patrons. Cigan v. Arcade Garden Corp., 323 Ill.App. 170, 55 N.E.2d 290; Waterman v. Harvard College, 290 Mass. 535, 195 N.E. 717.

Nor was appellant negligent in having emergency exit doors which would open upon pressure being applied to them. There is no evidence in the record that these doors were improperly constructed or installed. They appear to have been of the usual and ordinary character of emergency exit doors required by the Safety Regulations for theaters, as prescribed by the Director of the Division of Insurance in conformity with KRS 227.060. The record shows that these doors were properly closed or bolted when the theater opened for business at 12:45 o'clock on the afternoon of the accident, and there is nothing in the evidence to show who unbolted or unfastened the doors or that it occurred soon enough before the accident to impute notice to the...