189 A. 886 | Pa. Super. Ct. | 1936
Argued October 6, 1936. This is an action of trespass to recover for injuries sustained by the plaintiff, a woman sixty years of age, who fell down the steps in an aisle of the balcony of defendant's theatre.
The plaintiff claims that the injuries were caused by defendant's negligence in having neither the aisle lighted nor an attendant present to warn her of the steps when she entered the balcony. She stated that on the afternoon of September 17, 1934, she visited defendant's theatre for the first time, bought a ticket, and was directed by the usher downstairs to go upstairs as all the seats on the first floor were occupied; she went *43 to the balcony and, as an usher was not in attendance, started down the middle aisle, in which she saw no lights, to find a seat, and "being it was so dark I didn't see the stoop when you step, I fell and rolled all the way down, and my foot went underneath me." Later, when asked the question if there was a light on the footstep, she replied: "There was a light, like a flashlight on that very aisle." On cross-examination, she testified that she was able to see the opening but that it was "pitch dark."
A witness for the plaintiff, who at the time of the accident was connected with defendant's theatre, testified that the theatre is equipped with lights along the footways and that each aisle "is lighted with a step light, we call them, on the side." The plaintiff contended that this testimony did not establish that the lights on the steps were in repair and use at the time of the accident.
The lower court, at the close of plaintiff's testimony, directed a verdict for the defendant. This appeal ensued.
One maintaining a moving picture theatre, while not an insurer of the safety of patrons, must use reasonable care in the maintenance and management of the premises, having a due regard for the usual conduct of the patrons, so that they may not be unnecessarily or unreasonably exposed to danger: Haugh et al. v.Harris Bros. Amuse. Co.,
In this case we are more particularly concerned, for reasons hereinafter appearing, with the question whether the plaintiff's evidence established that she failed to use due care. We will confine our discussion to that proposition, for, if her case discloses contributory negligence, as we think it does, the defendant is not answerable, even if actually guilty of negligence: Cazzulo v. Holscher et al.,
Accepting plaintiff's account of the accident, she came to the darkened aisle, with which she was unfamiliar, and attempted to enter it without waiting for an usher to assist her or until the lighting was such that she could, with reasonable safety, proceed to a seat. It is universally known in this modern day when practically everyone attends moving picture shows that when pictures are being shown the auditorium is darkened most of the time and ushers are equipped with flashlights to help patrons to their seats. When darkness prevailed, the plaintiff should not have heedlessly entered the aisle of the balcony where the front part is lower than the rear. She should have reasonably anticipated that steps were a necessary part of such a construction and that the floor would not continue on the same level as where she entered the aisle. She knew that she could not see where she was walking, and common prudence should have dictated that it was unsafe for her to proceed.
No decisions of our courts have been called to our attention, and we have found none, where facts existed as here.
In Conboy v. Osage Tribe No. 113,
In Modony v. Megdal,
In McVeagh et al. v. Bass,
In Leckstein v. Morris,
In Rutherford v. Academy of Music,
In Smith et al. v. Penn Federal Corp.,
In Haugh et al. v. Harris Bros. Amuse. Co., supra, the plaintiff fell going down an aisle when leaving the theatre. The negligence charged was inadequate lighting of the foot of a stairway which had a very unusual construction. Instead of an ordinary step which she expected, there was a 16-inch drop, of which no warning was given. Such a situation could not have reasonably been anticipated.
In Cathcart v. Sears, Roebuck Co.,
Nor do we think this case is ruled by the recent decision inVetter v. Great Atlantic Pacific Tea Co.,
In Oakley v. Richards (Mo.),
Dondero v. Tenant Motion Picture Co.,
After giving careful consideration to the arguments of the learned counsel for appellant, we have concluded that the plaintiff's own testimony convicts her of contributory negligence.
Judgment affirmed. *48