Pope v. Carolina Theater

• Decision Date: 13 March 1934
• Docket Number: 13804.
• Citation: 173 S.E. 305,172 S.C. 161
• Parties: POPE v. CAROLINA THEATER.
• Court: South Carolina Supreme Court

173 S.E. 305

172 S.C. 161

POPE v. CAROLINA THEATER.

No. 13804.

Supreme Court of South Carolina

March 13, 1934

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by Annie Lawson Pope against the Carolina Theater (Palmetto Amusements, Inc.). From an adverse judgment, plaintiff appeals.

Affirmed.

C. T Graydon, of Columbia, for appellant.

Herbert & Dial, of Columbia, for respondent.

W. C COTHRAN, Acting Associate Justice.

The action which gave rise to this appeal was commenced in the county court for Richland county, in June, 1932, and trial took place in November of that year.

The plaintiff claimed damages for personal injuries, alleging that on or about March 2, 1932, she attended a moving picture performance at the theater of the defendant; that she paid the regulation price for a ticket and that while witnessing the performance some unknown person released in the theater a stench bomb, the very sickening odor from which caused her to be nauseated; that as she arose from her seat and started out from the theater "the rug carpet or covering upon the floor had been allowed to become torn or humped up and the Plaintiff's heel caught thereon and threw her violently to the floor."

Various allegations of negligence and willfulness then followed as the basis for actual and punitive damages, such as allowing a person to enter the theater with a stench bomb and to open same in the theater; in allowing the covering on the floor to become uneven and thereby dangerous to persons walking thereon; in failing to inspect and repair the unsafe floor; and in allowing it to remain in the theater.

The answer of the defendant was, in effect, a general denial with allegations of contributory negligence.

At the conclusion of the testimony for the plaintiff, the defendant moved for nonsuit upon the ground that there was no proof of actionable negligence or willfulness to be submitted to the jury. The motion was granted and the plaintiff has appealed from the order of nonsuit.

A brief narrative of the testimony of the plaintiff, she being the only witness, is set forth in the first part of this opinion, her testimony following the allegations of the complaint up to the time and the cause of her alleged injury. The only time which may in any way refer to the allegations of willfulness and negligence set out in the complaint is that she did not know who opened or released the stench bomb; and as to her fall, she said:

"Just as I entered the aisle I caught that foot in the rug and of course that threw me forward."

The trial judge permitted the plaintiff to give further testimony after the motion for nonsuit had been made and she testified as follows:

" Well, I got up to go out, of course, and I made a couple of steps to the entrance and as I entered the aisle I just seemed to trip myself under that rug. It seemed like the rug grabbed my shoe and over balanced me and I went over. That is all I can say. *** I felt my foot caught but I certainly could not see. It is dark in there and of course when I had fallen I could not see it, but I knew I was thrown down by the rug.

Q. What part of your foot did you feel caught? A. I felt the heel part of my shoe."

This additional testimony failed to convince the trial judge that there was any testimony of actionable negligence or willfulness to go to the jury.

The ruling of the trial judge on the motion for nonsuit was unquestionably correct. There was...