Purdy v. Loew's St. Louis Realty & Amusement Corporation

• Decision Date: 03 May 1927
• Docket Number: No. 19709.,19709.
• Citation: 294 S.W. 751
• Court: Missouri Court of Appeals
• Parties: PURDY v. LOEW'S ST. LOUIS REALTY & AMUSEMENT CORPORATION.

294 S.W. 751

PURDY v. LOEW'S ST. LOUIS REALTY & AMUSEMENT CORPORATION.

No. 19709.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Suit by Anna Purdy against Loew's St. Louis Realty & Amusement Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Casper S. Yost, Jr., of St. Louis, for appellant.

John F. Maloney and Marsalek, Stahlhuth & Godfrey, of St. Louis, for respondent.

SUTTON, C.

The plaintiff, a widow, aged 65, brought this suit to recover damages for personal injuries sustained by her on August 22, 1924, when she was caused to fall by a step or offset in an alleyway maintained by the defendant as a means of exit from its theater. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $2,100, and defendant appeals.

The defendant, at the time plaintiff was injured, owned and operated the Loew's State Theater, located on the west half of the block bounded by Seventh and Eighth streets, and Lucas and Washington avenues, in the city of St. Louis. The theater property consists of two buildings and an inclosed bridge connecting the buildings over the alleyway in which plaintiff was injured. The south building, at the northeast corner of Washington avenue and Eighth street, contains the main entrance, opening on Washington avenue, and the lobby of the theater, and also a number of stores. The auditorium of the theater is located in the north building, at the southeast corner of Lucas avenue and Eighth street. A large part of the alleyway is covered over by the inclosed bridge connecting the two buildings, so as to give the entire structure the appearance of one building, and the alleyway somewhat the appearance of a tunnel. There were at the time of plaintiff's injury two exits from the auditorium building, one of which opened out on Lucas avenue and the other on the alleyway in question. Patrons going in at the Washington avenue entrance would ascend a pair of stairs and go north through the inclosed bridge over the alleyway to the auditorium. It was so arranged that one following this course would not know or realize that there was an alleyway underneath. The alleyway was located upon private ground, owned in common by the owners of the property in the city block in question, and it was marked as a private alley it extended through the block from Eighth street to Seventh street. The theater stage was at the west or Eighth street side of the auditorium building. In order to leave the theater, a patron who was seated in the balcony, where plaintiff was before her injury, would go to the east side of the auditorium building, descend a flight of stairs, make a turn, descend more steps, and then, after going down an incline back of the first floor seats, would go through a doorway which led out on the alleyway between the two theater buildings, underneath the bridge. Then, by turning to the right and following the alleyway, the patron would finally reach the public sidewalk on Eighth street. The alleyway is about 20 feet wide, and is floored with concrete. On the north side of the alleyway, running along the wall of the auditorium building, there is a narrow ledge about 30 inches wide and of varying height. At the east end of the south wall of the auditorium building, where the ledge commences, it is about 4 inches high. In front of the exit door above mentioned, leading from the auditorium building into the alleyway, this ledge is interrupted by a fanshaped incline or ramp. Commencing again to the west of the ramp the ledge is again about 4 inches high, and decreases in height until it dies out near Eighth street. The ramp or incline leads from the auditorium exit door to the lower level or central part of the alleyway. This ramp is about 12 feet wide at its upper end, and broadens out in a fan shape to about 16 feet wide at the bottom. It is so constructed that one coming out the exit door and turning west along the south wall of the auditorium building would encounter no step to warn him that he was walking along the surface of the narrow ledge.

At the time of plaintiff's injury, the theater was new; the day of the accident being the second day it had been in operation. Plaintiff reached the theater, in company with several friends, about 7 o'clock in the evening, and went in at the Washington avenue entrance. She had never been in the building before, and was unfamiliar with it. She went up to the second floor and through the inclosed bridge to the auditorium. She had no opportunity to see the alleyway, and did not know it was there. The show that plaintiff saw was the first show of that evening. The auditorium was fully occupied; it was crowded. Plaintiff sat in the balcony or upper part of the auditorium. A great crowd of the patrons left at the conclusion of this performance. Describing the situation, plaintiff testified:

"Q. And at the conclusion of the performance, when you started to get up and leave, did anybody else start to get up and leave? A. Oh, yes.

"Q. Well, how many? A. Oh, I don't know. We were just moving along; it was full, and we were just moving.

"Q. What do you mean by `full'? A. Well, there was a very large number of people there. We were just walking ahead of one another very slowly to get out.

"Q. Can you give any idea as to what proportion of the audience got up and left at the conclusion of the performance? A. No; I can't.

"Q. Well, was there another performance after this one? There was still another one? A. Yes.

"Q. So some of them stayed? A. Yes.

"Q. But a great many left? A. Yes, sir.

"Q. In leaving, just describe where you went. A. As we came down from the balcony, we went right along to the stairway to go downstairs, and we were just barely moving, it was so crowded, and when we got down to the bottom of the stairs, all but two or three, there was a little platform there, and there was a gentleman on each side, and they said, `Go this way; this way out;' and we—I was on the right of the stairway and I turned to the left and I went—

"Q. (interrupting) Who were those gentlemen who were standing there directing the crowd? A. I suppose they were ushers; I don't know."

From the platform at the bottom of the stairs plaintiff descended two or three more steps and turned to the left with the crowd. She and her friends followed the crowd, walking slowly, to get out. She was going along an incline. She did not notice when she went through the exit door into the alleyway. She did not see any exit sign and thought she was still in the theater. She did not know there was an exit from the building at that place. There were lights above her, and there was lattice work decorated with flowers at the side. Plaintiff noticed no difference in lighting effect between the inside of the theater and this alleyway.

Following the crowd, plaintiff, having reached the alleyway (although she did not then know what it was), turned west along the south wall of the auditorium building. The plaintiff stated that there was the regular crowd of people that would come out of the show, and they just walked along close together. Describing the crowd in the alleyway, she testified:

"The Court (Q.): Could you see the ground or surface on which you were walking? A. No, sir.

"Mr. Marsalek (Q.): What was the condition of the entire alleyway with reference to people? A. Just seemed to be even.

"Q. You mean it was filled with people from side to side? A. Yes, sir."

In walking to the west, plaintiff stated there was just one person, a stranger, between her and the wall of the auditorium building. She kept on walking about parallel to the wall. She saw nobody step down a step at any time, and did not know that there was any step or offset or sidewalk there. Two of her friends were ahead or her, and the plaintiff thought the other was right alongside of her. She had gone or 10 feet when she slipped off of something and fell. Describing her fall, she stated:

"A. Well, I was walking along, and my foot slipped off of something, and it threw me forward, and, as it threw me forward, I put my hands out, and as I fell I fell on my hands and knees and went all the way down.

"The Court (Q.): Which foot slipped? A. The left foot and the—and I fell flat, and immediately the crowd gathered about me.

"Q. After you had fallen, did you then discover any offset or step there at the place you had been walking? A. When I laid there, before they picked me up, I noticed the offset, but I didn't know what it was.

"Q. You say there was a jog? A. Yes; but I couldn't see what it was. I didn't know anything about it; I knew it was something I slipped off of, but I couldn't tell.

"Q. How near were you, as you lay there, to that jog or offset? A. Oh, right close to it —as near as I could fall.

"Q. You were right practically against it? A. Yes, sir.

"The Court (Q.): Did you fall full length or on your hands, or how? A. No; it just threw me forward and I went to protect myself—threw my hands out—and, of course, it threw me on my hands and knees, and I went on down.

"Q. How much did you weigh at that time? A. Well, about 242 or 44 pounds."

On redirect examination, she explained that her left foot slipped off of something and went down. She did not know what it was until afterward. The people in front and alongside of her were so close that she could not see far around her; she could not see right down at her left by looking down; people were walking right alongside of her.

Miss Rose Becker, one of the ladies who accompanied plaintiff at the time of her injury, testified that she and plaintiff were walking alongside of one another coming down the stairs, and when they got out into the alleyway she happened to step a trifle before plaintiff, and that she (witness) made a misstep on this little curb or step-off there, and turned around to warn plaintiff, but plaintiff had already fallen. The witness testified...