299 Mass. 258 | Mass. | 1938
The plaintiff and her daughter were rightfully in the defendant’s moving picture theatre. Upon the evidence most favorable to the plaintiff, it could have been found that an usher conducted them about half way down an aisle which sloped toward the stage and in which there were no steps or stairs of any kind. It was dark in the theatre, and a picture was then being shown. The usher indicated that they should take some vacant seats on their left which were in some distance in a row at right angles to the aisle. In order to reach the seats it was necessary for them to pass in front of several persons who were seated at their left in the row. The usher had no flashlight, or if she had one she did not use it, and said nothing about there being a difference in level in the floor in front of the row of seats which the plaintiff and her daughter had to pass. There was a difference in level there consisting of a perpendicular drop of five or six inches from the level of the floor upon which the plaintiff and her daughter were walking in front
At the close of the evidence the judge upon motion directed the jury to return a verdict for the defendant. To the allowance of this motion the plaintiff duly excepted.
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.
There was no evidence of any defect “in the passageway or in the . . . step itself,” and we do not think there was any structural defect. The floor of the theatre sloped to
Exceptions overruled.