Rogers v. Atlanta Enterprises, s. 34751
| Decision Date | 14 January 1954 |
| Docket Number | No. 1,Nos. 34751,34752,s. 34751,1 |
| Citation | 89 Ga.App. 903,81 S.E.2d 721 |
| Parties | ROGERS v. ATLANTA ENTERPRISES, Inc. (two cases) |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An invitee, who is as fully aware of the dangers and defects of the premises of the proprietor as is the proprietor himself, in coming on such premises assumes the risk, and cannot recover from the defendant for dangers resulting in injuries by reason of such dangers and defects. Since the evidence here demands this finding, the trial court did not err in directing verdicts in favor of the defendant.
Mrs. Sadie Rogers (the plaintiff in case No. 34751) sued Atlanta Enterprises, Inc., in the Superior Court of Muscogee County, alleging that she was injured from a fall in a theater conducted by the defendant, by reason of a popcorn box on which she stepped and slipped as she got up from the aisle seat where she had been sitting for the purpose of leaving the theater. Her husband's action (case No. 34752) is based upon the same transaction and seeks recovery for loss of services and medical expenses. These cases were tried together. After the evidence for both sides was in and both sides had rested, the trial court on motion of counsel directed a verdict for the defendant. The plaintiffs filed separate motions for new trial on the general grounds, which were later amended by adding one special ground in each case, complaining of the direction of the verdict as error. The bills of exceptions assign error upon the denial of these motions.
Arthur F. Copland, Paul Blanchard, Columbus, for plaintiffs in error.
Foley, Chappell, Kelly & Champion, Columbus, for defendant in error.
The only question for determination here is whether the trial court erred in directing verdicts in favor of the defendant. The evidence, construed in its light most favorable to the plaintiffs, would have authorized the jury to find facts substantially as follows: that Mrs. Rogers came into the theater, bought the tickets, and was seated with her husband on aisle seats; that she had been to this particular theater before and was familiar with it; that she knew there was a popcorn concession in the lobby where popcorn was sold to persons attending the theater; that she had on previous occasions seen people buy popcorn and take it into the auditorium to eat while they were watching the programs, and on the occasion in question she passed by the popcorn stand on her way through the lobby while it was in operation; that the theater auditorium was dimly lighted, as is customary during the projection of motion pictures; and that she could not see the floor, and did not find the popcorn box or know that it was there until she slipped on it at the time she was leaving. The plaintiff from her former visits to the theater was also on notice that there were no compartments available to persons seated in the theater and eating popcorn to place the containers or other refuse unless they carried it out with them; that theater personnel did not come about cleaning out refuse from under people's seats during the time that the programs were going on; and that programs were continuous without intermission from the opening to the closing of the theater each day.
Code, § 105-401, upon which this action is grounded, provides as follows: 'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' The petitions charge the defendant with constructive knowledge of the presence of popcorn boxes on the floor in the path of persons leaving their seats, and this allegation is supported by evidence that from 500 to 1,000 popcorn boxes were swept out of the theater every night. Accordingly, knowledge of the defective premises on the part of the defendant was sufficiently shown. See United Theatre Enterprises v. Carpenter, 68 Ga.App. 438, 23 S.E.2d 189.
Further, we can not say that the action of a theater management in selling food, soft drinks, and so on to patrons,...
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...of ordinary care for her own safety as would prevent a recovery." Id. at 287, 163 S.E.2d at 345. See also Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 81 S.E.2d 721 (1954); Bradley v. Delph Nor-Tex Hide Co., 428 S.W.2d 481 (Tex.Civ.App.1968).19 Of course, that the danger is open and......
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