Solley v. Shea Theatre Corp.

McLaughlin, J. Upon the opening statement of plaintiff’s counsel, the trial court directed a defendant’s verdict. Plaintiff appeals on questions of law. The petition, read and included in the opening, clearly states a cause of action. However, these pertinent words were added: “We have here what I call a mock-up but I think the judge *186 called it a replica of the area. The evidence will show Mrs. Solley sat in this seat and Vicky sat in this seat. That after sitting there for four or five seconds they decided to move down further in the theater and as they rose and started out Mrs. Solley suddenly pitched head forward into the aisle, landing, on her side. “The evidence will show that at the time these two women went into the theatre that the lights in the auditorium were darker than those outside, that their eyes had to adjust to the difference in darkness and lightness and the evidence will show that there is a light bulb on this area here of the seat closest to the aisle and that light is to project light down into the carpeted aisleway. Then on this side there is a hole drilled in the metal bulge there that is to show light over into the area of their entry. “The evidence toill show at the time that Mrs. Solley and daughter entered their row of seats that the light was not burning. * * * The evidence will further show that at the time that Mrs. Solley entered there and her eyes were not accustomed to darkness that she had no recollection of a step up to get in and as she started out from where she stood up she was looking to see whether or not the people coming in the aisle would open enough to step out in the aisle. “The evidence will show that she assumed the floor in front of the seats was level but when she turned and stepped over that suddenly she fell because there this was cut away.” (Emphasis added.) Our emphasized words present an inference of contributory negligence. However, it is rebuttable. In this situation contributory negligence must be conclusively shown. If there are opened other facts bearing on the subject from which a jury might reasonably infer no negligence, a directed verdict is erroneous. See Kelly, Admr., v. Bergen County Gas Co., 74 N. J. Law, 604, 67 A., 21. In our opinion other facts were opened (the unusual two rows of raised platform seats — the particular light, to show the raised platform and the step up and the step down, was out —the high degree of darkness on the floor in front of the seats) from which a jury might infer that the plaintiff exercised that degree of care for her own safety which an ordinary prudent person would exercise under the same or similar circumstances. *187 In onr opinion, upon the whole opening, it was for the jury to say whether this theatergoer was negligent under all the circumstances. This case in all respects is not unlike the case of Central Amusement Co. v. VanNostran, 85 Ind. App., 476, 152 N. E., 183, in which the Appellate Court of Indiana under similar circumstances declared that there was a question for the jury on that subject. There are two Ohio cases, Cornell v. Morrison, 87 Ohio St., 215, and Lighton v. Hower Corp., 149 Ohio St., 72. The learned trial court, in an opinion overruling the motion for a new trial, placed great reliance thereon. Both are distinguishable. The former was not a negligence case. The latter was not an opening-statement case but involved evidence in which the plaintiff made damaging admissions against interest. This court in the case of Neitzelt v. New York, Chicago & St. Louis Rd. Co., 101 Ohio App., 472, has held that “* * * the petition and not the opening statement is controlling,” and that “The purpose of an opening statement is not to add to the petition, but to enable counsel to state what he expects to prove under the allegations of the petition.” In effect, that holding was that added words in an opening could not make a bad petition good. We would add here that counterpart that added words in an opening statement, where every reasonable intendment must be given to the plaintiff, could not make a good petition bad. In the instant case the short record does not contain any words which show that plaintiff’s counsel was given an opportunity to explain, supplement or detract from his opening. The record merely shows that argument of counsel took place on the directed verdict motion. In the trial court’s opinion, it is simply stated that counsel was given such opportunity. Counsel has not retreated from his original position even in this court, but the fact remains that we are bound by the record only. Each and every assignment of error is sustained. The judgment is reversed. Judgment reversed. Van Nostran, J., concurs.