Sutton v. Fox Missouri Theatre Co.

• Decision Date: 13 June 1960
• Docket Number: No. 1,No. 47743,47743,1
• Citation: 336 S.W.2d 85
• Parties: Elva SUTTON and Titus Sutton, Appellants, v. FOX MISSOURI THEATRE COMPANY, a Corporation, and the City of Joplin, Respondents
• Court: Missouri Supreme Court

Page 85

336 S.W.2d 85

Elva SUTTON and Titus Sutton, Appellants, v. FOX MISSOURI THEATRE COMPANY, a Corporation, and the City of Joplin, Respondents.

No. 47743.

Supreme Court of Missouri, Division No. 1.

June 13, 1960.

Edward V. Sweeney, Monett, William H. Burden, Joplin, for appellants.

Karl W. Blanchard, Ralph H. Smith, Jr., Seiler, Blanchard & Van Fleet, Joplin, for respondent Fox Missouri Theatre Co.

William O. Russell, Joplin, Loyd E. Roberts, Joplin, for respondent, City of Joplin.

HOLLINGSWORTH, Judge.

In this action, plaintiffs Elva Sutton and Titus Sutton, husband and wife, seek damages in the total sum of $40,000 from Fox Missouri Theatre Company, a corporation, and the City of Joplin, Missouri, as a result of personal injuries sustained by Mrs. Sutton on December 26, 1957, when her foot caught upon the base of a recruiting sign placed and maintained by the U. S. Naval Department upon a public sidewalk in the City of Joplin in front of the entrance of the Fox Theatre, causing her to trip and fall upon the sidewalk as she attempted to walk through a crowd of the theatre's patrons standing in front of its theatre awaiting admission. The petition alleges Mrs. Sutton's damages for personal injuries sustained in the sum of $35,000 and Mr. Sutton's damages for loss of services, consortium and medical expenses incurred in the sum of $5,000. At trial in the Circuit Court of Jasper County, the trial court sustained separate motions filed by defendants at the close of plaintiffs' evidence and directed a verdict in favor of both defendants. Plaintiffs have appealed from the judgment rendered in accordance with the verdict so returned.

The negligence alleged against the City was that it allowed and permitted the sign to obstruct a portion of the sidewalk in front of the Fox Theatre, making it dangerous for pedestrian traffic to pass freely to and fro; that it knew the sign was in said location and knew that large crowds of people collected in front of the theatre for the purpose of buying tickets, causing the sidewalk to be heavily crowded, and knowingly permitted Fox to appropriate the sidewalk with its crowd, thereby creating a nuisance; that the City was negligent in permitting the nuisance to exist; and that its aforesaid negligence concurred with negligence of Fox in creating the dangerous condition. The negligence alleged against Fox was that it knew of the existence of the sign on the sidewalk in close proximity to its ticket window and entrance; that it appropriated the sidewalk in front of its place of business for its own use by attracting a large crowd and in failing to open its doors so that the crowd could enter its theatre and in failing to control or regulate the crowd and in causing and permitting the crowd to obstruct the sidewalk and obscure the view of the sign, rendering it dangerous for pedestrians; and that the aforesaid negligence of Fox concurred with the negligence of the City in failing to remove the sign.

Each defendant pleaded the insufficiency of the petition to state a cause of action against it, denied generally and specifically the facts and negligence alleged in the petition and alleged that Mrs. Sutton's injuries, if any, were caused in whole or in part, or were directly contributed to, by her negligence in failing to exercise ordinary care for her own safety, whereby both plaintiffs were barred of any right of recovery.

A detailed statement of the evidence, excluding that relating to the extent of Mrs. Sutton's injuries and Mr. Sutton's alleged general and special damages, is required.

Main Street in Joplin runs north and south. Fox Theatre, engaged in showing motion pictures, is and since 1955 has been located on the east side of the street, at 415 Main, in the 'downtown' portion of the city. The front of the building is 18 feet, 7 inches in width. The sidewalk in front of the theatre and for several 'doors' north and south thereof is approximately 10 feet, 6 inches in width. The ticket office sits back (east) of the building line 3 feet, 4 inches. Entrances into the theatre are on each side of the ticket office.

The naval recruiting sign over which Mrs. Sutton tripped had been maintained by the U. S. recruiting service upon the sidewalk in front of the theatre for an unstated number of years. Its position upon the sidewalk, however, was changed from time to time; sometimes it was placed near the curbline opposite the south end of the building; sometimes it was placed in like position opposite the north end; sometimes it was placed 'on the inside.' The city police department regularly and frequently patrolled the area in which the theatre was located and the City had knowledge that the sign was maintained upon the street in front of the theatre and that its position in front thereof was shifted from time to time.

A picture of a portion of the front of the theatre and the sign, taken at sometime after Mrs. Sutton fell showing the sign placed near the curb opposite the south end of the theatre building, follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At the time Mrs. Sutton tripped upon the sign, it was situate on the sidewalk 8 to 12 inches from the curb in front of the ticket office, near the rear wheel of the bicycle shown parked at the curb and approximately at the 'flagpole hole' shown in the picture. (The man shown walking south on the left side of the picture has passed the ticket office and is in front of the theatre entrance immediately south of the ticket office.) The sign is about two inches thick and 60 inches high. The width of its base is 35 inches across and 34 inches from front to back. The 'cross base is an inch by a quarter inch scrap iron' and 'the bottom of it is 3 and 1/8th inches off the ground.'

At trial time, Mr. and Mrs. Sutton were, respectively, 72 and 64 years of age. They had lived in Joplin since 1941 and for thirteen years had lived at their present address. On the afternoon of December 26th, a clear day, they walked southward down town for the purpose of shopping at Macy's or Ramsay's stores, both of which are on the east side of Main Street, south of Fox Theatre. As they walked south on the sidewalk along the east side of Main Street and approached the theatre at about 2:20 to 2:30 p. m., they noticed a crowd of people, composed mostly of teenagers and children, extending from two doors north of the theatre to a like distance south of it. The crowd occupied the entire sidewalk, 'just like about a crowd will ordinarily stand waiting for something, just up together.' They were not lined up and there was no one supervising them. December 26th was a holiday for school children and Fox had advertised a show calculated to be attractive to such children, to begin at 2:30 p. m.

As plaintiffs passed through the crowd, Mrs. Sutton was in front and Mr. Sutton followed, holding her by the arm. They proceeded slowly, 'inching' southward upon the sidewalk, 'this way and back this way.' The crowd was described by plaintiffs as consisting of 150 to 200 people, as being 'dense' but 'not jam up against but close' together. There was not sufficient space open to enable them to see through the crowd, but they experienced no difficulty in seeing 'what was ahead'--'the people on the sidewalk.' The people composing the crowd were orderly, 'milling about', 'going no place.' Mrs. Sutton, not as tall as the general crowd, is about 5 feet in height; Mr. Sutton 6 feet, 2 inches. Neither was unduly jostled or shoved. As they passed through the crowd, there was a girl sitting in the ticket office but, insofar as plaintiffs saw, she had not begun to sell tickets.

When they had reached the center of the crowd immediately in front of the theatre, Mr. Sutton saw the recruiting sign. It was, according to Mr. Sutton's testimony, on the sidewalk due west of the 'corner of the ticket office, within 8 or 10 inches of the curb'; according to Mrs. Sutton's testimony, it was on the sidewalk due west of that office, about 'a foot from the curb.' Mrs. Sutton came directly in front of the sign, Mr. Sutton was directly behind her, within 3 or 4 feet of the sign. Mrs. Sutton, going slowly, saw the top half of the sign and turned to her left (east) to go around it. She 'caught her (right) foot on that brace and she just shot headlong in the Fox Theatre passageway.' Her shoe was jerked from her foot and she fell headlong, sustaining injuries.

Plaintiffs had known of the sign being kept in various positions in front of the theatre for quite some time. They had seen it there on previous occasions and, but for the crowd, they could easily have seen it on this occasion. They had priorly passed the theatre when there were crowds, but not as large as the one through which they were passing when Mrs. Sutton fell. Mr. Sutton testified that although both of them had seen the sign many times, they had never noticed how it was 'set' or 'made up.' He testified that on the day in question he did not see the sign 'until we got right down to it. * * * Because we wasn't paying no attention to it--to the sign.'

During his testimony, Mr. Sutton placed a large 'O' on the picture above shown at the place where Mrs. Sutton's foot was caught on the sign. It shows that her foot caught in the lower brace on the left side of the sign as Mrs. Sutton confronted it and attempted to go to the left of it.

Mrs. Sutton further testified: Although she had seen the sign many times before she fell, she had never noticed how it was supported. As she and Mr. Sutton passed through the crowd on this occasion, it was 'thick enough you couldn't see anything up the street, they was just all around,' covering the entire sidewalk in front of the theatre building. She was trying to get through the crowd. She came right in front of the sign--'would have gone right through it' had she continued. She turned to her left to get around it. If there had been no spreading base to it, she could...