Block v. Opera Holding Co.

Crosby, J. The plaintiff seeks to recover for injury to her person and damage to her clothing, caused by the spilling of lemonade upon her while occupying a seat in the Boston Opera House on the evening of November 7, 1924, during a public performance given by the defendant. The plaintiff was seated in the second balcony, next to and directly in front of a passageway which ran parallel to the rows of seats. At the end of this passageway was a stand where lemonade was sold to persons in the audience. One Heller testified that for four years he had been the manager of a “concession” to sell lemonade in this opera house; that he was not employed by the defendant but by a third party who, he understood, “had the concession” from the defendant to sell lemonade there that boys brought up in cups on trays; that none was sold to persons in the audience while in their seats, they would have to purchase it at the stand. The vice-president of the defendant, in answer to interrogatories, stated that no one was authorized by the defendant to sell lemonade in the opera house on the [272] evening in question; that no agreement had been entered into with the defendant by any one in reference to the sale of lemonade on the evening the plaintiff was injured. There was evidence that, while the plaintiff was in her seat watching the performance, and while the theatre was dark, a large quantity of lemonade was spilled upon her; that she was made ill by the shock and that her clothing was damaged. The trial judge found that "there was no evidence of negligence on the part of the defendant nor any evidence tending to show the cause of the accident except lemonade spilled in the dark upon the plaintiff.” This finding must stand unless unsupported by the evidence. If, as could have been found, the defendant leased the privilege of selling lemonade at the stand at the end of the passageway to the employer of Heller, and Heller was the manager of that business, yet there was no evidence to show he was in the employ of the defendant, nor that the defendant had anything to do with the sale of lemonade in the theatre. The accident occurred in the dark, and upon this meagre record the trial judge was warranted in finding that there was no evidence of negligence of the defendant. The doctrine of res ipsa loquitur is not applicable to the case at bar. While the mere occurrence of an injury sometimes raises a presumption of liability on the part of a defendant, yet in such cases it must appear that the instrumentality causing the injury was in the control of the defendant. Kendall v. Boston, 118 Mass. 234. Hofnauer v. R. H. White Co. 186 Mass. 47. Morris v. Eastern Steamship Corp. 221 Mass. 306. All that appears in the present case is that the lemonade was spilled on the plaintiff. The evidence does not show that it was the property of the defendant or within its control. Kendall v. Boston, supra. Trim v. Fore River Ship Building Co. 211 Mass. 593. Upon' the record presented, the finding that there was no evidence of negligence of the defendant was not erroneous in law. The plaintiff’s seventh request was given. The sixth in substance was covered by the seventh. The others were rightly denied. Order dismissing report affirmed.