La Sell v. Tri-States Theatre Corp.

• Decision Date: 21 September 1943
• Docket Number: 46250.
• Citation: 11 N.W.2d 36,233 Iowa 929
• Parties: LA SELL v. TRI-STATES THEATRE CORPORATION.
• Court: Iowa Supreme Court

11 N.W.2d 36

233 Iowa 929

LA SELL v. TRI-STATES THEATRE CORPORATION.

No. 46250.

Supreme Court of Iowa

September 21, 1943

Appeal from District Court, Polk County; Jos. E. Meyer Judge. [Copyrighted Material Omitted]

Putnam, Putnam, Fillmore & Putnam, of Des Moines for appellant.

Miller, Huebner & Miller, of Des Moines, for appellee.

BLISS Justice.

Appellant's assignments of error are based upon erroneous instructions, and the failure to properly instruct the jury. The appellee contends that if it be conceded the trial court so erred, it was error without prejudice, since its motion to direct a verdict because the appellant had failed to establish either negligence on the part of appellee, or her own freedom from contributory negligence should have been sustained. If there is merit in the appellee's contention it is decisive of this appeal, and makes it unnecessary to pass upon the merits of the errors assigned. Some review of the record is therefore first required.

The appellant, aged 64 years, weighing at the time about 223 pounds, accompanied by her daughter, and the latter's daughter, having paid the required admission, entered the Des Moines Theater, operated by the appellee, about 5 o'clock in the afternoon of June 8, 1941, to attend a moving picture show. Patrons, after passing through the entrance, traverse the lobby, foyer, and promenade, in succession, before taking their seats in the auditorium. The auditorium is approximately 100 feet east and west, and probably somewhat farther, north and south, from its rear to the screen at the north end. The main or ground floor of the auditorium consists of four sections of seats, the two center sections having 40 rows of seats, and the side sections having two or three rows less. There are five aisles extending from the rear, north, to the screen aisle number one being along the west wall, and the other aisles being numbered consecutively to the aisle along the east wall. The entire floor of the auditorium extends from the stage toward the rear, south, on a gradually rising gradient or incline, until it reaches the third row of seats from the rear wall of the auditorium. From the elevation of this line, the level of the aisles gradually slopes downward toward the aisle entrances and coincides with the floor level of the promenade. But the level of the floor under the last three rows of seats in the auditorium, and between those parts of the aisles which slope southward and down, continues on a rising incline to the rear wall. As a result of this method of construction the passageway to the seats in the third row from the rear is on the same level as the aisle, and there is no step-up from the aisle into this passageway. But to enter the passageway to the seats in the second row from the back there is a step-up of approximately five inches, which continues as a ramp or upward-sloping way for a short distance into the passageway. Entrance from the aisle into the last row at the rear of the auditorium is in like manner except that the step-up is somewhat higher.

Appellant and her daughter and granddaughter entered the auditorium at aisle two, the second from the west wall. An usher, with a flashlight, seated them in the second row from the rear, in the section of seats on the left or west of this aisle. The granddaughter sat in the third seat from the aisle, and the daughter in the seat on the aisle and just over the step-up. None of them had any difficulty in taking her seat, and the appellant testified that she did not notice the step-up. The usher did not call their attention to the step-up. Other patrons were passing along the aisle as they came in. Patrons were entering and leaving the auditorium throughout the entertainment. The picture was shown, as is customary, in partial darkness. After they had been in the theater for about three hours, the daughter went to the rest room. She almost fell in stepping to the aisle, but retained her balance. About five or ten minutes later, the appellant took hold of the granddaughter's hand with her left hand, and stepped toward the aisle. Not seeing the step-down because of darkness, and not knowing of its presence, and thinking there was no change in level of the floor on which she was walking, she lost her balance when her foot went to the aisle floor, and she fell forward, striking her head on the metal seat across the aisle. She had never been in this theater before.

Her petition alleged negligence thus: "The proximate cause of the plaintiff's injuries and damages was the negligence of the defendant in negligently permitting an uneven condition in its floor to exist, over which patrons would be likely to stumble and fall, with insufficient lighting and without warning of the danger." The petition was in no way attacked. The answer was a general denial.

There was uncontradicted evidence that the riser of this step and about two inches in width of its tread had been repainted with white enamel paint about the end of April, 1941. There was also evidence that it was repainted as it became soiled, darkened, or worn off, but no evidence of its being painted between April, 1941 and June 8, 1941, the day of the injury. After taking her mother to the hospital, the daughter came back to the theater, to get the name of the gentleman who had aided her mother after she fell, and to make some observations. She testified: "The theater was dark and then the promenade was a little lighter and the main entrance was real light. When I left to go to the rest room I didn't see the edge of the aisle and when you sit there awhile you forget about anything. When I went out of there, I staggered myself, I happened to catch myself. At that time I didn't notice any lights but I know there is lights there. I did not observe any whitewashing or any white paint on the edge of the floor where it joins the aisle floor. When we were first ushered into the theater the usher did not state to Mrs. LaSell, or me, nor any of the three of us to take note of the step-off there. No one said anything to us upon our entrance into that theater with reference or regard to the step-off at the point where we were ushered into our seats." On cross-examination she testified: "*** I never saw any white stuff on there. I looked afterwards but I didn't see anything. If there was white stuff there at the time, it was awfully dirty, you couldn't see it. The light was so bad you couldn't see in there. I didn't look at the step when I stumbled but I did afterwards, that night. I didn't examine it very thoroughly when I went back, but I did see there was a step there. *** As to the carpet in front of the step, you couldn't see the carpet. I never saw any lights in that place. The lights were scattered up and down the aisle. I don't say there were no lights there at that time because I didn't see any. I didn't see the step there or I wouldn't have stumbled myself. *** I never thought of looking down when I was leaving. I didn't think of an uneven floor, didn't think there was any necessity of it." The appellant testified: "When we went into the Des Moines Theater I was ushered to my seat by an usher. He had a flashlight. It cast a light on the floor so you could see to get to the seat. *** Within the place where the audience watches the show the interior was quite dark, just real dim lights. *** I got up and started to walk out, and I reached back for Darlene's hand, and of course, looked at the floor, tried to look at it, but it was so dark you couldn't see the floor, so I just walked out, or started to walk out. I hadn't stepped any more than two steps, I think, until I fell just as soon as I came to the end of the seat and stepped down here, I lost my balance and went head-long into the seats across the aisle. *** At the time I got up and walked out I did not know there was any step-off where the floor goes into the aisle. When the usher ushered me into my seat he did not tell me there was a step-off there. Neither the usher or any one told me to remember that there was a step-off there when I came out. Neither the usher or any one told me that I should watch my step as I left the theater. I did not notice that condition there when I went into the seat. As I stepped out at the end of the seat not knowing that there was a step-down I just walked right out like I was walking on a level floor, and of course, I lost my balance and then I went right on over. The edge of the step-off was not illuminated by a light. It was dark. I could not see where the edge of the floor left and the aisle began lower. The usher did not use a flashlight to help me get out of there. *** I tried to see but it was so dark that you wouldn't see the floor there where I came out."

On cross-examination she testified: "An usher took us at the door and seated us. I came into the seat I was sitting over the same path I went away on. I suppose I stepped up this step when I went into the seat but I didn't notice it. We had been out in the light when we came into the theater. *** I noticed some lights or posts scattered along the side of the theater. When we went in I noticed little dim lights down the aisle but they weren't light enough to light the aisle. The lights weren't showing on the edge of the step. There was no light on the end of the aisle (on the end seat of the aisle) and if it was there, it was out because there was no light there when I walked out. There was no light on that floor, it was dark there. I looked down to see where I was walking, and couldn't see the floor at all. I walked out, I supposed it was all level, didn't know there was any jump-off. I must have walked up the step when I came into the place, but I didn't notice it, there were other people went in ahead of us. I did not...