Savannah Theatres Co. v. Brown, 36 Ga. App. 352

Savannah Theatres Co. v. Brown

36 Ga. App. 352 | Ga. Ct. App. | 1927

Jenkins, P. J.

(After stating the foregoing facts.) Where injury is alleged to have been proximately caused by specified negligence on the part of a defendant, the question whether it was in fact thus brought about is one that it is peculiarly within the province of the jury to determine. In the instant ease the fall and injury of the plaintiff’s wife while going down the stairway of the defendant’s theater building is specifically alleged by the plaintiff to have been “caused by the pushing and shoving in her rear” of certain small boys. Thus, while the petition may indicate that the alleged hole in the rubber matting of the stairs, and the defective lighting of the stairway, might have contributed to. the accident, the petition nevertheless plainly indicates that the efficient *354proximate cause of the injury, without which it would not have happened, was the pushing and shoving mentioned. It is furthermore true that the alleged negligence in failing to check the boys in pushing and shoving in the hall is coupled with and altogether predicated upon the defendant’s knowledge of their previous boisterous and hilarious conduct during the performance. The result is that if the hilarity of the boys during the performance could not be taken as a sufficient circumstance to cause the defendant reasonably to anticipate the subsequent pushing by them in the hall, the plaintiff would not be entitled to recover. In Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712), it was held that if “there is any reasonable apprehension of danger to such a customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons can be prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages.” The petition having in substance alleged that in view of the defendant’s knowledge that boisterous and hilarious customers were in the balcony, it was its duty to protect its customers from the danger incident to pushing and shoving down the. ill lighted and defectively carpeted stairway of the hall, and since it is the general rule that what in a given case constitutes ordinary care on the part of such a proprietor for the protection of its patrons is a question for determination by the jury, and not by the court (Stewart v. Mynatt, 135 Ga. 637, 640, 70 S. E. 325), this court will not disturb the judgment of the trial court overruling the demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.