275 Mo. 266 | Mo. | 1918
This is an appeal from a judgment respondent recovered for damages for injuries she received from falling when she attempted to pass from her seat into the aisle of a moving-picture theater owned and operated by appellants. The evidence conflicts. That for respondent tends to show the theater was quite dark; she was unable to see the floor at her feet; she could see, merely as a dark object, her companion who preceded her into the aisle; she left
Numerous errors are assigned. Other facts can best be stated in connection with the particular questions to which they are relevant.
pSitionng III. The petition originally counted on (1) common-law negligence, and (2) violation of Section 156 of the Building Code. The answers pleaded at length Ordinance No. 7667, which purports specifically to regulate, in some respects, moving-picture shows. It contains this provision: “No steps shall be permitted in any aisle or in any part
The amendment to the pleading did not change the defense. Appellants’ answers had been on file nearly six months. Those answers pleaded Ordinance 7667 in full, and pleaded inspection and approval thereunder by the Superintendent of Buildings and Fire Warden, and the subsequent licensing of the theater as a defense to the action. Compliance was essential to such defense. Counsel contended then and contend now that their evidence showed, as a matter of law, that appellants had complied with the provision requiring written permission for the installation of the step-off. Every official who acted in the premises was put on the stand. Proof was made by appellants that every writing issued by the officials was in evidence. The issue was fully tried. There was a total failure of written permission by the Fire Warden. Indeed, the proof was he had given no. such permission. This proof was made by appellants. One charge in the petition was that a provision of a designated ordinance prohibited inequalities in floor levels. Ordinance 7667 contained a like prohibition, subject to exception on
An ordinance conditionally restricting the exercise of a right, otherwise exercisable without question, and making that exercise dependent upon the arbitrary will of a city officer, may well be held invalid. On the other hand, matters of • detail in enforcing ordinances otherwise valid may be left to designated officials. Again, it is held quite generally that in case
Affirmed.