223 S.W.2d 732 | Ky. Ct. App. | 1949
Affirming.
Appellant instituted the action to recover from appellees damages for injuries sustained as a result of falling on steps in a theatre owned and operated by appellees. At the conclusion of all the evidence, the Trial Court sustained appellees' motion for a peremptory instruction and directed the jury to return a verdict accordingly. The only question for our determination is whether the evidence of negligence on the part of appellees was sufficient to submit the issue to the jury.
On the evening of January 27, 1947, at about 8:30 O'clock, appellant, her husband, brother, and cousin attended the showing of a moving picture at Loew's Theatre in Louisville. They were shown to their seats in the loge by an usher who used a flashlight, the better to light the steps they were required to ascend. All members of the party testified that the lights on the steps under the *135 seats were in working condition when they entered the theatre. The light at the top step was not in operation when they took their departure. Because of the failure of this light, appellant did not see the top step and in descending fell the full length of the stairway. As a result of this fall she received the injuries for which she seeks recovery.
Many cases are cited by appellant to sustain her theory that the evidence was sufficient to establish a prima facie case of negligence on the part of appellees. One of the authorities relied on is 52 Am. Jur., Section 51, pages 295, 296, wherein on page 296 it is said: "The fact that lights which were designed to be lit at all times during performances were unlighted at the time of a patron's injury may constitute negligence by the proprietor if he knew or should have known that they were out."
In the same Section, at page 295, in discussing the general rule, the writer points out that the proprietor of a motion picture house must use ordinary and reasonable care for the safety of patrons with respect to lighting conditions within the theatre, but he is not an insurer of the safety of his patrons; and in order to recover from him for injuries sustained on account of inadequate lighting, it is incumbent on complainant to show that the proprietor failed to exercise "proper care" in that respect. In Harwood's Adm'r v. Richter,
In the instant case it is not contended that the lights maintained under the seats along the stairway when in working condition were insufficient to light the way and to disclose the presence of the steps. As a matter of fact, the only proof on this particular branch of the case is that they were adequate and sufficient for the purpose. The uncontradicted proof is that the lights were in working condition, consequently the stairs were adequately lighted, when appellant and the other members of her party ascended the stairs to take their seats; but at some time after that and before their departure, presumably two hours hence, one of the lights ceased to function, thus causing the hazard complained of. There is an absolute absence of evidence that the light ceased to function as a result of any negligence on the part of either of appellees; therefore, the only negligence, if any, which could be attributed to them would be their failure to repair the light, if they or one of their agents or servants observed, or, in the exercise of "proper care," could have observed its unlit condition. No evidence was introduced to indicate that appellees or any of their agents or servants actually knew the light had ceased to operate. Thus, appellant's right to have the case submitted to the jury depends on whether the evidence was sufficient for the jury to conclude the light had been out for such duration of time prior to the happening of the accident as to put appellees on constructive notice of the defect. The evidence conclusively shows the light was lit approximately two hours before, and that it was not lit at the time of, the happening of the accident; but the evidence does not even suggest at what moment in the two hour interval the light went off. It might have been two hours, two minutes, or two seconds before the accident. Had it been shown that the light went out two hours before the accident, we are of the opinion that the case should have been submitted to the jury. On the other hand, had it been shown that the light ceased to function but two seconds or two minutes before the happening *137
of the accident, appellees, as a matter of law, would not have been negligent, since such length of time was not sufficient to impute notice to them. It is apparent, under the circumstances shown, if the case had been submitted to the jury, they would have been required to speculate as to the element of time in order to determine the question of negligence. Under such circumstances we ever have held a case should not be submitted to the jury. Whalen's Adm'x v. Sundell,
Appellant relies on Anderson Nelson Distilling Company v. Hair,
We are of the opinion that the Trial Court properly instructed the jury to find a verdict for appellees.
The judgment is affirmed. *138