Taylor v. Palmetto Theater Co.

• Decision Date: 16 December 1943
• Docket Number: 15585.
• Citation: Taylor v. Palmetto Theater Co., 204 S.C. 1, 28 S.E.2d 538 (S.C. 1943)
• Parties: TAYLOR v. PALMETTO THEATER CO.
• Court: South Carolina Supreme Court

28 S.E.2d 538

204 S.C. 1

TAYLOR v. PALMETTO THEATER CO.

No. 15585.

Supreme Court of South Carolina

December 16, 1943

Appeal from Common Pleas Court of Richland County; G. Duncan Bellinger, Judge.

Action by P. H. Taylor against the Palmetto Theater Company for injuries sustained when plaintiff, while in the performance of his duties as a fireman, fell into a pit maintained by defendant in a passageway.A motion to strike portions of the complaint was granted, and plaintiff appeals.

The complaint is as follows:

The plaintiff above named complaining of the defendant above named alleges:

(1) That the plaintiff is a citizen and resident of the County of Richland, State of South Carolina and was at all times hereinafter mentioned in the employ of the City of Columbia, being a member of the Fire Department of said City.

(2) That the defendant is and was at all the times hereinafter mentioned a corporation duly created organized and existing under the laws of the State of South Carolina, and engaged in business in the City of Columbia, S C.

(3) That the said defendant owns, operates or controls several moving picture theaters in the City of Columbia, S. C., and, as plaintiff is informed and believes also owns, controls or has an interest in, either as an affiliate or parent corporation, numerous other motion picture theaters throughout the State and Nation, and has property, franchise rights and other assets of great value and from which it earns large sums of money.

(4) That at all times hereinafter mentioned the defendant, The Palmetto Theater Company, was the owner of and in possession and control of a lot of land with the building thereon on the east side of Harden Street between Blossom and Devine Streets, in the City of Columbia, S. C., and has for several years past used said premises, including the building located thereon, for the operation of a moving picture theater to which it invited the public to attend.

(5) That shortly after defendant purchased said lot in 1938 it had erected a

building thereon and at and about the same time had constructed, or permitted and suffered to be improperly, negligently and dangerously constructed, and thereafter maintained, a cement pit on the said premises, having a depth of 10 to 12 feet, and which created a situation which was likely to cause death or serious injury to any person entering on said premises in ignorance thereof; said pit having been constructed in connection with a stairway or walkway used as an exit from said theater building.

(6) That the said pit was constructed and located in a passageway leading from the rear of defendant's said premises to Harden Street, and which said passageway ran between the north side of the building used by the defendant as a theater and the south side of the building located on the premises immediately to the north of defendant's said premises.

(7) That for some time prior to the time that plaintiff was injured, as hereinafter set forth, the public generally had used the alley in the rear of the defendant's premises, as well as the said passageway above mentioned and the paved area, walkway or driveway hereinafter mentioned, with the knowledge, acquiescence and consent of the defendant, and the defendant having expected and invited the plaintiff as well as other firemen and policemen to enter upon said premises whenever necessary in the performance of their official duties.

(8) That at the time or after the said cement pit was constructed on the said premises the defendant realized that it had created a condition on its said premises which was likely to cause serious injury or death to persons lawfully coming on said premises, and that in an effort to prevent such injury it had constructed around the edge of said pit an iron railing about four feet high so as to prevent any person using said passageway from falling in the said pit.

(9) That some time after or about the time of construction of said cement pit, and some time prior to November, 1941, the defendant had constructed and has since maintained a paved area, walkway or driveway running from the rear of defendant's premises along and inside said passageway between defendant's building and the other building above mentioned in such manner and in such fashion as to give the impression and wrongfully lead persons lawfully coming on said premises to believe that the said walkway or driveway extended to Harden Street and that the same was an egress or passageway from the rear of defendant's said premises to the said Harden Street.That at the time the defendant constructed the said cement walkway or driveway it raised the level of the passageway leading up to the said cement pit to such an extent that the iron railing guarding the same was left only about a foot high or even lower above the level of said passageway and thereby creating and leaving a condition which was particularly dangerous to persons lawfully coming on the said premises in the nighttime without knowledge of such conditions.That the defendant negligently and wilfully failed to keep or maintain any light or other warning thereabouts or to in any manner give notice or warning to persons lawfully coming on said premises of the existence of such dangerous conditions thereon.

(10) That on or about the 18th day of November, 1941, and during the nighttime, the fire department of the City of Columbia was called over telephone to go and put out a fire in the rear of a store and meat market adjoining or immediately in the rear of the said premises of the defendant.

(11) In pursuance of his duties as a fireman for the City of Columbiathe plaintiff answered said call along with other members of the fire department.That while he was in the course of the performance of his duties, and being immediately in the rear of the

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