Central Amusement Co. v. Vannostran

Nichols, C. J. Action by appellee against appellant for damages for personal injuries alleged by appellee to have been received by her by falling in an aisle of the Lyric Theater in Indianapolis, Indiana, operated by appellant. *478 Appellee in her complaint charges negligence in having the seats in the rear of the Lyric Theater placed upon a floor or platform several inches higher than the aisle through which the seats were reached, and in having the place insufficiently lighted without any warning of danger. It is alleged that appellee, in leaving a seat in the rear of the theater, fell over the “step-off” and into the aisle with such force that her left arm was broken at the wrist. There was an answer in general denial, a trial by jury, and a general verdict in favor of appellee awarding her damages in the sum of $750. Appellant’s motion for a new trial was overruled, and judgment was rendered on the verdict in favor of appellee. The error relied on for reversal is that the court erred in overruling appellant’s motion for a new trial. Appellant’s first contention is that the verdict of the jury is not sustained by sufficient evidence. It is undisputed that there was a “step-off” at the place where appellee fell, and that the last two rows of seats were on a platform back of the “step-off.” The aisle slanted up to where the platform was, which was three or four inches above the slanting floor. The ushers had gone home, and there was no one to warn of danger. Appellee and her companion occupied seats in the second row from the rear, which would be the front row on the platform. A marble barrier back of the seat threw the last two rows in a shadow. During vaudeville performances, the lights were turned out and there was no warning of the presence of danger. Appellee never sat in that part of the theater before, and did not notice the “step-off” as she went in. Appellee started to leave the theater during the time of a performance, and because of the darkness and the want of warning of danger, she fell as she *479 stepped from the platform into the aisle, and was injured. With such evidence before it, it was for the jury to say whether appellee’s injuries were the result of appellant’s negligence, and whether she was guilty of contributory negligence. Appellant next contends that there is no evidence whatever that appellee was in appellant’s theater by invitation, express or implied, nor that she had paid any admission fee, nor that the theater was at the time being operated for reward or profit, reasoning therefrom that appellee was a mere licensee, and that she enjoyed the license subject to its attendant risk. But we are not impressed with this contention. Appellant’s place is a theater, which is defined as an edifice used for the purpose of dramatic, or operatic, or other representations, plays or performances, for admission to which entrance money is received. Black, Law Dictionary (2d ed.) 1151. It, with other theaters, was owned and controlled by appellant, with a manager in charge, whose business it was to check up on the cashiers. Appellee went to the theater for the purpose for which it was operated, was allowed to enter, and occupied a seat during a regular performance. From these facts, and in the absence of any evidence to the contrary, the jury might reasonably infer that appellee was in the theater for the mutual advantage of herself and appellant. Where 'there is no evidence to the contrary, very slight evidence is sufficient to sustain a fact. Ferger v. International Flour Mills (1923), 80 Ind. App. 248, 140 N. E. 450. It was not reversible error for' the court to permit evidence of other persons falling from the same step-off, either before or after the time of the accident here involved, it appearing that the construction had remained the same. Cleveland, etc., R. Co. v. *480 Newell (1885), 104 Ind. 264; Louisville, etc., R. Co. v. Lange (1894), 13 Ind. App. 337, 41 N. E. 609. Appellant contends that it was reversible error to give instruction three, which instructed the jury that if certain elements of negligence were proved, appellee was entitled to recover, omitting from such instruction the element of contributory negligence. Appellant has not set forth all the instructions given, but appellee says, and we assume that she is correct, that the jury was fully instructed as to contributory negligence in other instructions given. If so, there was no reversible error in omitting it from this instruction. Artificial Ice, etc., Co. v. Waltz (1925), 146 N. E. (Ind. App.) 826; J. Wooley Coal Co. v. Tevault (1918), 187 Ind. 171, 190, 118 N. E. 921. Appellant’s attention is directed to the requirement as to instructions of fifth clause Rule 22, of the rules of the Supreme and Appellate Courts. Appellant waives any error as to instruction No. 2, requested by appellee and given by the court, by failing to set it out anywhere in his brief. In quoting from instruction No. 2, requested by appellee and given, appellant stops too soon. The full quotation should be: “Persons attending a theater have a right to assume and act upon the assumption that a person or corporation conducting a theater has discharged his or its duties to make such premises safe, and has exercised such reasonable care in maintaining it in such a reasonably safe condition as is consistent with its practical purposes.” With this full statement as to the duties of those operating a theater, there was no reversible error in giving instruction No. 2. Instruction No. 3 requested by appellee and given by the court, as modified, advised the jury, in effect, to consider whether the step-off complained of was an unnecessary hazard to the patrons of the *481 theater, and informed the jury that if it ,should so find, then appellant was guilty of negligence in maintaining the same. We see no reversible error in such an instruction. Complaint is made of instruction No. 4 because it made no reference whatever to the evidence given in the case. We assume, however, that in some other instruction given by the court, but not set out in appellant’s brief, the jury was fully instructed as to its duty in rendering the verdict in harmony with the preponderance of the' evidence, governed by the law given by the court. This statement applies with equal force to instructions Nos. 7 and 8 requested by appellee and given by the court as modified. Instruction No. 6 instructed the jury that if it found from the evidence that appellant’s theater floor was uneven in such a manner that a person,of ordinary care and prudence, and exercising such care upon attending such theater, would be likely to stumble and fall over the same, it might consider that appellant had been guilty of negligence in allowing it to be so constructed and to remain in such condition. There was no error in giving this instruction. We cannot say that the damages assessed were excessive. Judgment afiirmed.