Whitfield v. Cox
| Decision Date | 07 March 1949 |
| Docket Number | Record No. 3434. |
| Citation | 189 Va. 219 |
| Parties | JAMES A. WHITFIELD, ETC. v. VIRGINIA G. COX. |
| Court | Virginia Supreme Court |
1. NEGLIGENCE — Duty to Invitee — Owner of Place of Amusement Not Insurer of Invitee's Safety. — The owner or proprietor of a place of amusement, or entertainment, is not an insurer of the safety of his invitees. His duty is to exercise reasonable care for their safety and protection — such care as would be exercised by an ordinarily careful and prudent person in the same position and circumstances.
2. APPEAL AND ERROR — Proceedings on Review — Weight to Which Verdict of Jury Entitled. — A verdict of a jury confirmed by the trial court is entitled to great weight and is not to be disturbed if supported by credible evidence, or if fair-minded men may differ on the inferences to be drawn from the evidence. At the same time, there must be more support than is afforded by speculation or conjecture.
3. NEGLIGENCE — Duty to Invitee — Adequacy of Measures Taken by Owner of Place of Amusement — Case at Bar. — In the instant case, an action for damages for personal injures, plaintiff was struck in the face by an empty whiskey bottle while attending a wrestling bout staged by defendant. There was no evidence as to who threw the bottle, or why it was thrown, or from what direction it came. Defendant had nine employees present to keep order and there were thirteen members of the police force on hand charged with that duty. No alcoholic beverages were sold on the premises and drinking was not permitted. The only conflict in the evidence was made by plaintiff's testimony that there was public drinking, which the police officers and defendant said they did not see, and that there was unusual disorder and rowdyism, which the officers and defendant denied. Plaintiff admitted that she did not consider the crowd dangerous. She based her right to recover on the alleged negligence of defendant in failing to protect her from injury as a paying invitee.
Held: That it was not required of defendant that he search his patrons for objects that might be used to injure plaintiff or other patrons and short of doing that, or having enough employeees to watch each patron and prevent one from injuring another, the measures taken by defendant to protect his patrons were all that could reasonably be required.
4. NEGLIGENCE — Duty to Invitee — Evidence Insufficient to Establish Causal Connection Between Alleged Negligence and Injury to Invitee — Case at Bar. — In the instant case, an action for damages for personal injuries, plaintiff was struck in the face by an empty whiskey bottle while attending a wrestling bout staged by defendant. There was no evidence as to who threw the bottle, or why it was thrown or from what direction it came. Defendant had nine employees present to keep order and there were thirteen members of the police force on hand charged with that duty. No alcoholic beverages were sold on the premises and drinking was not permitted. The only conflict in the evidence was made by plaintiff's testimony that there was public drinking, which the police officers and defendant said they did not see, and that there was unusual disorder and rowdyism, which the officers and defendant denied. Plaintiff admitted that she did not consider the crowd dangerous. She based her right to recover on the alleged negligence of defendant in failing to protect her from injury as a paying invitee, and contended in support of the jury's verdict in her favor that it had the right to believe that defendant did not have enough employees to keep order and that those he did have made no attempt to keep order.
Held: That if the evidence were sufficient to warrant an inference by the jury that defendant was negligent in failing to have a sufficient number of employees, or in failing to keep proper order, it was yet necessary in order to hold him liable, that such negligence be the proximate cause of plaintiff's injuries and it would only be conjecture to say that there was any connection between the conditions existing and the throwing of the bottle. If defendant had had several times as many employees as he had, the incident could still have occurred.
5. NEGLIGENCE — Duty to Invitee — Evidence Insufficient to Support Verdict for Guest Struck by Bottle at Wrestling Match — Case at Bar. — In the instant case, an action for damages for personal injuries, plaintiff was struck in the face by an empty whiskey bottle while attending a wrestling bout staged by defendant. There was no evidence as to who threw the bottle, or why it was thrown or from what direction it came. Defendant had nine employees present to keep order and there were thirteen members of the police force on hand charged with that duty. No alcoholic beverages were sold on the premises and drinking was not permitted. The only conflict in the evidence was made by plaintiff's testimony that there was public drinking, which the police officers and defendant said they did not see, and that there was unusual disorder and rowdyism, which the officers and defendant denied. Plaintiff admitted that she did not consider the crowd dangerous. She based her right to recover on the alleged negligence of defendant in failing to protect her from injury as a paying invitee and the jury returned a verdict in her favor.
Held: That plaintiff knew from prior attendance that wrestling matches were not quiet and dignified affairs and knew the usual behavior of the spectators. It was not the duty of defendant to keep the crowd quiet. Its antics seemed to be part of the attraction. The duty on defendant was to use reasonable care to protect plaintiff from dangers that could reasonably be anticipated and the evidence did not establish a breach of that duty or any causal connection between such an alleged breach and plaintiff's injury.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, Judge presiding.
The opinion states the case.
White, Ryan & Holland, for the plaintiff in error.
Samuel Goldblatt and James G. Martin & Sons, for the defendant in error.
The plaintiff, Mrs. Cox, was struck in the face by an empty pint whiskey bottle, thrown by some unidentified person, while she was attending a wrestling bout staged by the defendant, Whitfield. She brought this suit for the resulting damages and obtained a jury verdict for $1,500, upon which judgment was entered. This writ of error was granted to the defendant, who asserts that the evidence was not sufficient to support the verdict and that the court erred in giving an instruction.
The plaintiff based her right to recover on the alleged negligence of the defendant in failing to protect her from injury while she was a paying invitee at the wrestling matches. These matches were conducted by the defendant in an auditorium leased from the city of Norfolk. The bouts took place in an elevated ring in the center of the auditorium, with reserved seats about the ring, and other seats farther back and in the gallery. There were bright lights over the ring, but the rest of the lights in the auditorium were dim.
On the night in question the plaintiff was in a reserved end seat at the ringside. With her were her young daughter and son. There were two or three thousand people in the audience. She said there was always a good crowd. She was very familiar with the situation, having previously attended the matches some ten times.
During one of the bouts between a sailor and a wrestler named Coffield, word went around that one of the wrestlers was sticking the other with a pin. There was yelling and a number of sailors appeared to dislike the way Coffield was hurting the sailor, and "it seemed like the whole crowd wanted to get in and fight." A sailor kept threatening to go up and kill Coffield. The plaintiff saw him start up the aisle and, as she explained, to calm herself she was buying a bag of popcorn when she was struck by the bottle.
Plaintiff contends that the defendant failed to use proper care to control the crowd and to prevent the misfortune that befell her. The evidence she offered was to the effect that drinking was allowed to go on among the spectators; that the crowd was profane and boisterous; that the sailor kept threatening to go up and kill the wrestler and was going up to the ring to start a fight, and that the defendant did nothing about it. However, she admitted that the only persons she saw drinking were two middle-aged women in the lobby, who were not rowdy, and she also saw two men drinking in the lobby that night and there were people drinking in the gallery.
As to profane language, she said it always went on at the wrestling matches, and as to the conduct of the crowd, they were usually given to strong enthusiasm. She did not consider the crowd dangerous and the only time she was nervous was when the sailor got up. She "didn't dream that anything terrible could happen," and she made no complaint to the defendant, or his agents, or to the police on duty, one of whom was within 30 or 40 feet of her when she was struck.
For the protection of his patrons, the defendant had secured the passage of a city ordinance prohibiting the sale of soft drinks from bottles and requiring the use of paper cups. No alcoholic beverages were sold on the premises, and drinking was not permitted. If a patron was detected bringing in whiskey, he was required to check it. The city assigned a detail of policemen to keep order...
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