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

• Citation: 294 S.W. 751,220 Mo.App. 854
• Parties: ANNA PURDY, RESPONDENT, v. LOEW'S ST. LOUIS REALTY & AMUSEMENT CORPORATION, APPELLANT. *
• Decision Date: 03 May 1927
• Court: Court of Appeal of Missouri (US)

294 S.W. 751

220 Mo.App. 854

ANNA PURDY, RESPONDENT, v. LOEW'S ST. LOUIS REALTY & AMUSEMENT CORPORATION, APPELLANT. *

Court of Appeals of Missouri, St. Louis

May 3, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

Judgment affirmed.

Casper S. Yost, Jr., for appellant.

The court erred in refusing to give defendant's demurrers to the evidence, for the following reasons: First: The evidence totally failed to show any negligence on the part of the defendant. Waldman v. Skrainka Const. Co., 211 Mo.App. 576; Peck v. Yale Amusement Co., 195 S.W 1033; Cochran v. Wilson, 229 S.W. 1050; Hathaway v. Chandler, 229 Mass. 92; Brugher v Buchtenkirch, 167 N.Y. 153; Schaefer v. DeNeergard, 188 N.Y.S. 159; Albachten v. Golden Rule, 17 N. & C. C. A. 305; Hoyt v. Woodbury, 200 Mass. 343; Ware v. Evangelical, 181 Mass. 285; Hunnewell v. Haskill, 174 Mass. 557; Adelman v. Altman, 209 Mo.App. 583; Geninazza v. Leonori, 233 S.W. 75; Danescocky v. Siebel, 195 Mo.App. 470; Main v. Lehman, 294 Mo. 579; Shafir v. Sieben, 233 S.W. 423. Second: Plaintiff failed to prove any causal connection between her accident and the alleged negligence of the defendant. Waldman v. Skrainka, 211 Mo.App. 586; Peck v. Yale Amusement Co., 195 S.W. 1033; Benton v. St. Louis, 248 Mo. 109; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13; Harper v. St. Louis Merch. Bridge Term. Co., 187 Mo. 586; Fuller v. Wurstberg, 192 Mich. 447.

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

(1) In ruling upon a demurrer offered at the close of the case the court will accept as true all evidence in the record in plaintiff's favor, and will make every inference of fact in plaintiff's favor which a jury could, with any degree of propriety, draw therefrom. In ruling upon the demurrer the court will not draw inferences of fact in defendant's favor to countervail or overthrow inferences tending to support plaintiff's cause of action. Buesching v. Gas Co., 73 Mo. 219; Hall v. Coal & Coke Co., 260 Mo. 351; Lorton v. Railroad, 306 Mo. 137; Gratiot v. Railroad, 116 Mo. 466. The demurrer cannot be sustained unless the evidence, when considered in the light of the foregoing rule, leaves no room for men of reasonable intelligence to differ on an essential issue in the case. Steffens v. Fisher, 161 Mo.App. 386. (2) The maintenance in a passageway of a step, offset or other condition likely to cause people to fall, of an unusual nature, or at a place where the same would not be excepted, so that one using the passageway would be likely to fail to discover it, raises a question of negligence to be submitted to the jury. Oakley v. Richards et al., 275 Mo. 266; Nephler v. Woodward et al., 200 Mo. 179; Geninaza v. Leonori (Mo. Sup.), 252 S.W. 317; New Theater Co. v. Hartlove, 123 Md. 86; Blumer v. Sullenberg, 221 Pa. 25; Polenske v. Litt Bros. 18 Pa.Super. Ct. 474; Hanley v. James Butler, Inc., 153 N.Y.S. 39; Hommel v. Investment Co., 166 Wis. 235; Emmons v. Charlton & Co., 63 Wash. 276; Quirk v. Siegel-Cooper Co., 43 A.D. 464, 60 N.Y.S. 228, 6 A. N. R. 644; Stratton v. Staples, 59 Me. 94; Fogarty v. Bogart, 43 A.D. 430, 6 A. N. R. 650.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

The plaintiff, a widow, aged sixty-five, 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 theatre. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $ 2100, and defendant appeals.

The defendant at the time plaintiff was injured owned and operated the Loew's State Theatre, 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 theatre property consists of two buildings and an enclosed 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 theatre, and also a number of stores. The auditorium of the theatre 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 enclosed 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 enclosed 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 theatre stage was at the west or Eighth Street side of the auditorium building. In order to leave the theatre 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 theatre 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 twenty 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 thirty 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 four inches high. In front of the exit door above mentioned, leading from the auditorium building into the alleyway, this ledge is interrupted by a fan-shaped incline or ramp. Commencing again to the west of the ramp the ledge is again about four 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 twelve feet wide at its upper end, and broadens out in a fan shape to about sixteen 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 theatre was new, the day of the accident being the second day it had been in operation. Plaintiff reached the theatre, in company with several friends, about seven 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 enclosed 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 gentlemen 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 theatre. 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 theatre and this alleyway.

Following the crowd, plaintiff having reached the alleyway (although she did not then know what it was), turned west...