Stair v. Kane

• Decision Date: 17 October 1907
• Docket Number: 1,656.
• Citation: 156 F. 100
• Parties: STAIR v. KANE.
• Court: U.S. Court of Appeals — Sixth Circuit

156 F. 100

STAIR v. KANE.

No. 1,656.

United States Court of Appeals, Sixth Circuit.

October 17, 1907

Wm. B Beebe and A. W. Lamson, for plaintiff in error.

R. B Newcomb, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit brought by a minor, through his mother, for personal injuries against the lessee of the Cleveland Theater, in Cleveland, Ohio. The young man, Kane, had attended a night performance, and as he was leaving the theater he was struck on the sidewalk in front by a fire extinguisher, which, during the performance, and for some time before, had been standing in the window on the third or gallery floor, next the stairs down which the occupants of the gallery passed to reach the street. The case went to the jury, and there was a verdict for the plaintiff.

It was the contention of the plaintiff that the defendant owned and controlled the fire extinguisher, that he negligently and carelessly placed it in the window unfastened and unsecured and as a result it fell from the building and injured the plaintiff. In other words, the contention was that the fire extinguisher was unfastened and unsecured, and occupied a dangerous position, and that, although no one saw it fall, the jury had a right, under the circumstances, to infer that it fell because of the negligence of the defendant in permitting it to remain where it was, when he might reasonably anticipate that the crowding and jostling of the young men and boys, just out from an entertainment and eager to reach the street, would, in their hurry, push it from the window onto the fire escape and permit it to fall down upon the people leaving the theater below.

There are really but two questions presented: First, whether the petition stated a case of negligence which was supported by sufficient evidence to sustain the verdict; and, second, whether the court did right in permitting the introduction of evidence tending to show that the fire extinguisher was so placed in the window, unfastened and unsecured, and next the stairs which descended from the gallery towards the street, that on several occasions it was struck by the jostling crowd and fell over in the direction of the fire escape, being caught and held by an employe then on duty. There are some other questions relating to charges given or refused, but they all really depend upon the disposition of those that we have indicated.

1. As to the petition and the evidence in its support, we entertain no doubt that a case of negligence was stated by the plaintiff, and that the evidence was sufficient to warrant the court in leaving to the jury the determination whether the defendant was or was not guilty as charged. The petition states that the defendant had charge and control of the fire extinguisher which fell and injured the plaintiff; that the defendant negligently placed it in a window next the stairs which descended from the gallery, not safely or properly fastened or secured, and as a result it fell from the window over the fire escape and down on to the street, where it struck and injured the plaintiff, who was just leaving the theater. We think this states a case in favor of the young man against the lessee of the theater. The latter was compelled by law to provide a fire extinguisher, but it was his duty to put it in a secure...