Richard-Lightman theatre Corporation v. Vick

• Decision Date: 17 February 1941
• Docket Number: 4-6302
• Citation: 147 S.W.2d 731,201 Ark. 1001
• Parties: RICHARD-LIGHTMAN THEATRE CORPORATION v. VICK
• Court: Arkansas Supreme Court

147 S.W.2d 731

201 Ark. 1001

RICHARD-LIGHTMAN THEATRE CORPORATION v. VICK

4-6302

Supreme Court of Arkansas

February 17, 1941

Appeal from Hempstead Circuit Court; Dexter Bush, Judge; reversed.

Judgment reversed.

Ned Stewart and Paul Jones, Jr., for appellant.

James H. Pilkinton and C. Van Hayes, for appellee.

OPINION

MCHANEY, J.

Appellant owns and operates a motion picture theatre in the city of Hope. Appellee brought this action against it to recover damages for personal injuries she alleges she sustained from a fall in leaving the balcony of the theatre, during a performance she attended as a patron on November 19, 1939. The negligence laid and relied on is that appellant failed to have the balcony of its theatre properly lighted. The answer was a general denial, pleas of her own negligence as the sole cause of her injuries, if any assumption of risk and unavoidable accident.

Trial resulted in a verdict and judgment for $ 700 against appellant, and this appeal followed.

It is appellant's contention that the court erred in refusing to direct a verdict for it on its request so to do. We agree with this contention, on the ground there is no substantial evidence to support the verdict and judgment.

There is no contention that the balcony of the theatre was improperly or negligently constructed, but only that it was improperly lighted. Appellee, a resident of Atlanta, Texas but then employed as a waitress in a cafe in Hope, was accompanied to the theatre by her friend, Mrs. Mitchell, also of Atlanta, Texas, a temporary visitor in Hope, and they are the only witnesses in the case who profess to know anything about the accident. Mrs. Mitchell bought two tickets for the balcony at about 3:15 p. m. They entered the balcony, the aisle of which runs up and down and the seats crosswise. The seats are elevated from the front to the rear and the aisle has steps leading up to the back row of seats, and to the projection room which is just behind the back row of seats. They selected the end seats on the back row because they wished to avoid crawling over others on the lower seats. Evidently it was light enough when they entered, not only for them to find these vacant seats on the aisle end of the back row, but to see that the other end seats were occupied. The undisputed evidence is that the theatre balcony was equipped with twelve shaded bracket wall lights and eight or more owl or aisle lights attached to the seats along the aisle near the floor. In addition one or more large chandeliers hang in the center of the building and there are ten windows in the back of the balcony, through which natural daylight penetrates, thereby letting some light enter the balcony, and all over the ceiling of the theatre. An attempt was made to prove that all these wall bracket lights and the aisle lights were not burning. On this question appellee testified that she knew a picture must be shown in semi-darkness; that it is usually dark when you go in off the street, but in a few minutes one becomes accustomed to the dark condition. "We went up feeling our way. We didn't sit in the front seats because they were crowded, the end seats, and we didn't want to fall over anyone and she led the way up to the top seat." She said: "It was very dark and we felt our way." She was asked and answered questions on cross-examination as follows: "Q. Were there any lights in the balcony? A. I never noticed when we went in. Q. Did you see the lights on the wall on both sides? A. I never noticed those. Q. You don't know and you tell the jury you don't know whether there were any lights in the aisle or not? A. No, I don't-- Q. And you never noticed whether there were any lights at all in the balcony? A. No." She said she was sitting on the seat next to the aisle and did not notice whether there were any lights there or not. Mrs. Mitchell, appellee's companion and witness,...