Sample v. Eaton

• Decision Date: 23 October 1956
• Citation: 145 Cal.App.2d 312,302 P.2d 431
• Court: California Court of Appeals Court of Appeals
• Parties: Lester SAMPLE, Plaintiff and Appellant, v. Alvah M. EATON, doing business under the firm name and style of Olympic Wrestling Club; Alvah M. Eaton; Aileen LeBell, doing business as Olympic Auditorium Concessions; Aileen LeBell; Mrs. Alvah M. Eaton et al., Defendants, Alvah M. Eaton, individually, and Alvah M. Eaton, d/b/a Olympic Wrestling Club, and Mrs. Alvah M. Eaton, a/k/a Aileen LeBell, Respondents. Civ. 21476.

Page 431

302 P.2d 431

145 Cal.App.2d 312

Lester SAMPLE, Plaintiff and Appellant, v. Alvah M. EATON, doing business under the firm name and style of Olympic Wrestling Club; Alvah M. Eaton; Aileen LeBell, doing business as Olympic Auditorium Concessions; Aileen LeBell; Mrs. Alvah M. Eaton et al., Defendants Alvah M. Eaton, individually, and Alvah M. Eaton, d/b/a Olympic Wrestling Club, and Mrs. Alvah M. Eaton, a/k/a Aileen LeBell, Respondents.

Civ. 21476.

District Court of Appeal, Second District, Division 3, California.

Oct. 23, 1956.

Rehearing Denied Nov. 14, 1956.

Hearing Denied Dec. 19, 1956.

Betts, Ely & Loomis, Los Angeles, for appellant.

Spray, Gould & Bowers, Los Angeles, for defendants.

PARKER WOOD, Justice.

Action for damages for personal injuries sustained by a spectator at a wrestling exhibition, when he was struck by a bottle of Coca-Cola that was thrown by another spectator. The defendants were: the proprietor of the wrestling club that conducted the exhibition; and one of the operators of the refreshment concession at the exhibition. In a jury trial, a nonsuit was granted. Plaintiff appeals from the judgment of nonsuit.

On June 4, 1952, plaintiff attended a wrestling exhibition at the Olympic Auditorium in Los Angeles. He had attended wrestling matches regularly at that place for approximately four years. On said June 4 he paid the required admission fee and sat in the end seat of the press row, apparently the row next to the wrestling ring. The wrestlers in the main event were one Romero and Dangerous Danny McShane.

Plaintiff testified that for approximately five minutes before the first fall in the main event, McShane was very rough, was pulling hair, pulling trunks and jumping outside the ring; for two or three minutes before and two or three minutes after the first fall, the spectators on the opposite side of the ring from plaintiff were jumping up, fighting, booing and throwing paper cups, peanut sacks and 'stuff like that' into the ring, and several persons were standing in the aisle shouting and throwing various articles; after the first fall McShane 'strutted' around the ring, shouted at the customers on the opposite side of the ring (opposite plaintiff) and shook his fist at them; plaintiff stopped looking at the customers in order to talk to defendant Mr. Eaton, who had come to the place where plaintiff was sitting (plaintiff and Mr. Eaton were acquaintances); then plaintiff heard a commotion and turned, 'and all of a sudden a terrific force hit me [him] in the mouth'; he looked down and saw that a full bottle of 'coke' had fallen on his foot. He testified further that one of his teeth had cut through his upper lip, several of his teeth were loosened, and his jaw was broken.

On cross-examination he testified that about three or four minutes elapsed between the first fall and the time that he was struck in the mouth by the Coca-Cola bottle; he did not know where the bottle came from; on previous occasions when he had purchased liquid refreshment at the auditorium, the vendor put the refreshment in a paper cup; while he was in the dressing room receiving treatment for his injuries, the man who threw the bottle was brought into the room; the man said that he 'lost his head' and threw the bottle.

Defendant Alvah M. Eaton testified that he was the sole proprietor of the Olympic Boxing and Wrestling Club; he conducted the activities of the club at the Olympic Auditorium in Los Angeles; there was a 20-foot-square wrestling ring in the center of the auditorium; the ring was enclosed by ropes and was surrounded by a ledge that was 2 to 4 feet wide; the seating capacity of the auditorium was 10,400; he employed ushers, private police and Los Angeles police officers to maintain order--the number employed at any event depended on the number of spectators expected; he estimated that about 5,000 spectators were present the night that plaintiff was injured; he did not know how many employees were on duty that night; at any wrestling or boxing match the spectators become excited, and sometimes they are more excited than at other times; Romero and McShane were known in the wrestling profession to be good drawing attractions; McShane was considered to be a rougher type of wrestler than the usual wrestler. Mr. Eaton also testified that he had a rule that a bottle should not be given to a spectator; he had instructed his employees not to permit a spectator to obtain possession of a bottle under any circumstance; he had not instructed the ushers, vendors, private guards or police officers, who were employed by him, to quell a disturbance that might arise; he had seen spectators at the auditorium throw paper cups, popcorn wrappers, cigar butts and articles of that kind on occasions previous to the night that plaintiff was injured; it was very seldom that he had seen such throwing; he had instructed his employees to stop spectators from throwing things. Mr. Eaton testified further that he was in the immediate presence of plaintiff at the time plaintiff was injured; he saw plaintiff immediately after plaintiff was struck; plaintiff was bleeding slightly at the mouth at that time.

Mrs. Lopez testified that she attended a wrestling match at the Olympic Auditorium in Los Angeles when Romero and McShane were the contestants; she sat next to the aisle in the 10th or 12th row from the ring; for four or five ninutes before the first fall, McShane pulled Romero's trunks and hair; everyone was excited and very angry, especially the man who sat across the aisle from her to her left (later identified as the man who threw the bottle); the man used bad language before the match...