302 Mass. 309 | Mass. | 1939
The jury returned a verdict for the plaintiff, who alleged that she was injured by the fall of a seat which she was occupying in the defendant’s theatre. The only exception is to the denial of the defendant’s motion for a directed verdict. No question was raised as to the control of the premises by the defendant. The jury could have found that the plaintiff was an invitee, having entered the theatre with her husband and son upon tickets which had been purchased. Some time after the plaintiff had taken her seat, which was the second in from the aisle, she got up to permit other people to pass her who were on their way to vacant seats in the same row. In about an hour she got
“The defendant owed to the plaintiff as an invitee the general duty to use ordinary care and diligence to put and keep its theatre in a reasonably safe condition, having regard to the construction of the place, the character of the entertainment given and the customary conduct of persons attending, Rosston v. Sullivan, 278 Mass. 31, or at least to warn her against any dangers attendant upon the use of the premises which were not known to her or obvious to any ordinarily intelligent person and either were known or in the exercise of reasonable care ought to have been known to the defendant. Kelley v. Goldberg, 288 Mass. 79.” Rynn v. Fox-New England Theatres, Inc. 299 Mass. 258, 259. See Hale v. McLaughlin, 274 Mass. 308, 311; Correira v. Atlantic Amusement Co., ante, 81.
The defendant has not argued that the plaintiff was guilty of contributory negligence, but contends that there was no evidence of any violation of its duty in that it could not have discovered “the defect” by the exercise of ordinary care and diligence. It was the duty of the defendant, as far as reasonably practicable, to maintain its seat in a reasonably safe condition for the use of the plaintiff. Hillis v. Sears, Roebuck & Co. 284 Mass. 320, 321. It, however, was not an insurer of safety. But it was its duty to use
Although the question is close, we think it was for the jury to determine whether the defendant was negligent in failing to discover the condition of the seat, and whether it failed to use the care that an owner of ordinary prudence in the same situation would have used to discover a condition of danger attending the use of the seat. From the evidence that the brackets were a “little loose,” and the description of the wood of the seat as to its “rotten” condition and its appearance where the screws had been, the finding was justified that the condition was not transitory or of recent origin, and it was for the jury to determine whether a reasonably diligent proprietor of a theatre should have
The facts in the case at bar are distinguishable from those in Kelley v. W. D. Quimby & Co. Inc. 227 Mass. 93, Downing v. Jordan Marsh Co. 234 Mass. 159, and Russell v. Spaulding, 238 Mass. 206, upon which the defendant relies.
Exceptions overruled.