Tantillo v. Goldstein Bros. Amusement Co.
| Decision Date | 29 May 1928 |
| Citation | 162 N.E. 82,248 N.Y. 286 |
| Parties | TANTILLO v. GOLDSTEIN BROS. AMUSEMENT CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by John Tantillo, an infant, by Frank Tantillo, his guardian, against the Goldstein Brothers Amusement Company and another. Judgment for plaintiff was affirmed by the Appellate Division, Fourth Department (220 App. Div. 745, 221 N. Y. S. 912), and defendant named appeals.
Affirmed.
1. Theaters and shows 6
Patrons of theater are entitled to protection against acts which by their nature might cause menace to safety. Patrons of a theater are entitled to protection against acts which by their nature might cause a menace to safety, since one who collects a large number of people for gain or profit must be vigilant to protect them.
2. Theaters and shows 6
Boy granted free entrance to theater for purpose of participating in vaudeville act held entitled to recover against theater for resulting injury. Where boy, after purchasing ticket for admission to theater, was induced to return ticket, and thereafter entered theater without paying admission for purpose of going on stage and participating in a vaudeville act, he was entitled to recover against theater for injury resulting from his participation therein, since having been admitted to theater by order of manager he cannot fairly be regarded as possessing rights lesser in degree than those of a patron.
Appeal from Supreme Court, Appellate Division, Fourth department.
Earle C. Bastow, of Utica, for appellant.
Willard R. Pratt, of Utica, for respondent.
This case was tried upon the theory of negligence. In it is involved a principle important to proprietors and operators of theaters to which the general public is invited.
Plaintiff, 14 years of age, accompanied by two other boys, visited defendant's theater at Utica and bought tickets for admission. Before entering the auditorium, they were accosted by a man unidentified either as an employee of the theater or of the troupe then performing. At his suggestion the three boys returned their tickets, had their money refunded, passed the ticket taker without paying, and entered the auditorium with the unknown man. He provided them with seats and later induced them to go upon the stage and to participate in a vaudeville act then in progress. This act was played by a troupe known as George Brown & Co., who had been secured by the theater management through a booking agency and paid by appellant. The act was intended to be amusing. Plaintiff and his two young companions, as well as others among the spectators, were each encircled by a leather belt to which a rope was attached, and then they mounted a machine similar to a treadmill. They trotted on the machine and caused it to move like a treadmill. The faster they trotted, the more rapidly it revolved. While so engaged, some one, either a member of the troupe or an employee of the theater would jerk the rope, pull the performer from the machine, and cause him to fall upon a mat. This operation was supposed to furnish the comedy and to raise a laugh among the spectators. Brown's part consisted in catching the performer as he was catapulted from the treadmill. While in the act of attempting to catch plaintiff, Brown slipped and, falling, broke plaintiff's arm. He has recovered judgment which has been affirmed against the theater. Brown also was made a defendant but was never served and did not appear as a party or as a witness.
We think that plaintiff's right to the theater's protection ought not to be distinguished from that of an ordinary patron. Concededly he did not pay admission, but the circumstances under which payment was waived by the theater invest him with a status different from that of a guest. The evidence makes clear that he was given free entrance for no purpose other than to promote the interests of the theater and those of Brown. Both shared in the success added by plaintiff's presence on the stage and his propulsion, intended to be ludicrous, from the treadmill. If the spectators' amusement at this treadmill act were heightened by pl...
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