Summary
noting that there was no evidence indicating that the theater and its aisles were darker than was reasonably necessary or customary
Summary of this case from Telega v. Security BureauOpinion
November 29, 1946.
January 6, 1947.
Negligence — Possessor of land — Condition — Business visitor — Theaters — Duty — Burden of proof — Illumination — Stairways — Restatement, Torts.
1. One maintaining a theater or similar place of amusement for which admission is charged is not an insurer but must use reasonable care in the construction, maintenance and management of it, having regard to the character of the exhibitions given and the customary conduct of patrons invited. [613]
2. Restatement, Torts, section 343, cited. [613]
3. The burden is upon a plaintiff who so asserts to prove that defendant was negligent in maintaining its theater. [617-18]
4. In an action for injuries sustained by plaintiff when he fell on the step of an aisle in defendant's theater, it was Held that the evidence was insufficient to establish that defendant was negligent (1) in failing to illuminate adequately the stairway or (2) in the maintenance or construction of its stairs, and that (3) the evidence conclusively established that plaintiff was contributorily negligent. [609-23]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 154, Jan. T., 1946, from judgment of C. P. No. 6, Phila. Co., March T., 1944, No. 462, in case of Walter Beck v. Stanley Company of America. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion by CRUMLISH, J., of the court below, as follows:
Walter Beck brought an action in trespass against the defendant, the owner of a motion picture theater. The trial resulted in a verdict in the sum of Eleven Thousand ($11,000.) Dollars for the plaintiff, and defendant has moved for judgment n. o. v. and for a new trial. These motions are presently before us.
Walter Beck is a man, 63 years of age, and resides in Camden, New Jersey. He had never been in the Stanley Theater, 19th and Market Streets, Philadelphia, prior to his visit there with his son, Milton, age 12, on September 29, 1943. He purchased tickets for himself and his son, went inside, and was sent upstairs to the balcony because there were no vacant downstairs seats. He and his son used the west stairs, and when they arrived at the first level, they found there were no seats, crossed over to the east stairs and went up to the next and top level. They saw no seats on the east side, moved over toward the projection room which was in the center of the balcony, and took positions standing at the top of the aisle immediately east of the projection room. Plaintiff's son went down the steps of the aisle, which descended at an angle of about forty-five degrees, in search of seats. The son returned shortly, having found two seats, two rows from the front of the balcony, on the aisle. Milton told his father about the seats, turned and went down again. During all this time there was no picture being shown, but the theatre was darkened, there being a stage presentation of the leading lady of the film and its author. It was a premiere showing, and the two were making personal appearances. In all the plaintiff waited about ten minutes at the top, and then started down the steps of the aisle. When he got about half way down he fell, and sustained a fracture of the neck of the femur, left leg. He was hospitalized for a period of five weeks, confined to his bed at home for another five weeks; he suffered considerable financial loss by way of expenses and loss of work in addition to having some permanent shortening of the left leg.
Considering first the motion for judgment n. o. v., all the testimony and the inferences therefrom must be taken in a light most favorable to the plaintiff, ( Muelhof v. Reading Co., 309 Pa. 17 (1932) the further facts to be taken chiefly from the plaintiff's own testimony, are these: The plaintiff was asked to describe his descent: "I started down, and it was awful dark, and I put my foot down to catch the landing, and I noticed it had a wide step and a narrow step. I was very careful because it was awful dark. . . . Q. . . . While you were going down there was there any light being thrown on to the stage? A. Yes: they had a spotlight on a man and lady, and they said one was the leading lady, and the other was the author of the play. . . . Q. How did you go down those steps? A. A step at a time. I felt down with my feet first, because it was dark and I didn't want to fall. Q. Could you see the steps? A. Only the step in front of me. Q. Did you notice any difference in the width of the steps? A. Yes; I did. Q. How wide would you say the steps were? Let us refer to that as the platform step? A. I guess that would be two and a half or three feet, something like that. Q. And the intervening step? A. I would say that would be somewhere around nine to ten inches. . . . Q. Was there any difference in height between the steps, as you recall it? A. Not as I recall, no. Q. What happened? A. Well, as I was going down, and I got down about halfway, I misjudged the wide step for a narrow step, and it throwed me, and it throwed me on the steps. Q. There has been some mention made by my friend, by Mr. Henry, with reference to the aisle lights. Can you tell us anything about them? A. All I saw was a little light on the side, like a little slit in it, and it didn't throw any light on the stairs — only in the aisle. Q. Wait a moment. The aisle you were walking on on (sic) the aisle between the seats? A. The aisle between the seats. Q. No light on the stairs? A. No light on the stairs. Q. Was the carpet on the stairs light or dark? A. Dark. Q. How far had you gotten when you misjudged, or whatever it was? A. About halfway down the line of steps. Q. What happened? A. I fell, and I had such a pain I didn't know what to do. I tried to get up and I couldn't get up. There was no usher around, and I managed to turn over a bit, and I reached over to the seats, and I got hold of them, and I pulled myself up, and I stood there, and I couldn't move, because I had such a pain in my hip. . . . Q. You say there was no usher there? A. No. Q. Was there any usher there when you started down? A. No. Q. No one to escort you down the steps? A. No. Q. Anyone to light you down the steps? A. No; not at all. I stayed there about five minutes before an usher came down."
Under cross-examination plaintiff testified that he stood at the top of the steps for ten minutes before starting down. He said that during this time he was looking down at the stage. In testifying further about the little lights on the sides of the aisle seats, he stated they showed the row, or the seat, but not the aisle, and further, that he had not noticed these lights until he had gotten down three or four steps. While the plaintiff stood at the top of the steps he noticed no other persons in the aisles. He said that when his son, Milton, went down to look for seats, that he, the plaintiff, was unable to see Milton, and could not see him "until he got up near to me." When plaintiff started down the steps, he noticed the difference in width of the alternating steps, one wide and one narrow. Plaintiff testified the light was sufficient to enable him to see the one step ahead of him. "Q. You told us you could see one step ahead of you? A. Yes. Q. Therefore, as you saw that one step ahead of you, you could tell whether it was a narrow or a wide step? A. On the second one I could tell there was a difference in width. Q. Before you stepped down from the step you were standing on, you could see whether the step you were about to step on was wide or narrow? A. No; not the first step, no. Not the first step, I mean; no. Q. After you got going? A. On the second step, yes. Q. You then walked on until you fell? A. I got confused. . . . Q. All right, you are standing there up on that step, and you are about to step down on to the next step. You could see it, couldn't you? A. Certainly. Q. And you could tell whether it was wide or narrow? A. You couldn't tell whether it was wide or narrow until you took the second step, then you know it was wider. Q. I have got you way past the second step. You could then tell what was coming below you, either a wide or a narrow step, couldn't you? A. Yes. Q. And what happened to you was, you misjudged it, the step you stepped on? A. That's it. I misjudged the narrow step for a wide step."
The motion for judgment n. o. v. requires an examination of the facts and the law applicable thereto, first, testing the question of proofs of defendant's negligence; and secondly, by considering the question of contributory negligence.
The duty of the defendant is aptly stated in Haugh et al. v. Harris Brothers Amusement Co., 315 Pa. 90, 92 (1934) by LINN, J., as follows: "It is settled that one maintaining a theater, or similar place of amusement for which admission is charged, is not an insurer, but must use reasonable care in the construction, maintenance and management of it, having regard to the character of the exhibitions given and the customary conduct of patrons invited." See also, Restatement, Torts, section 343. Not being an insurer of the safety of his patrons, in order to render him liable for personal injuries occurring within the theater, some neglect of duty must be shown, and further that the injury complained of was the result of such negligence: Rissell v. Lycoming Amusement Co., 138 Pa. Super. 404 (1939). The immediate question, therefore, is what reasonable care in the construction, maintenance and management of its theatre did the defendant fail to exercise? Taking our cue from the plaintiff's contention contra the motion for judgment n. o. v., this negligence must be found in the lighting of the stairway or the aisle, which it is contended, was insufficient, "in view of its peculiar construction". It would seem that lack of illumination, alone, does not constitute negligence per se, but must operate in conjunction with some other physical condition which puts the burden on the proprietor of a theatre to furnish adequate light to reveal the danger. A consideration of the degree of darkness is inextricably bound up in the question of the plaintiff's contributory negligence, since this condition, standing alone, is equally well known to the plaintiff and the defendant: Bailey v. Alexander Realty Co., 342 Pa. 362, 367 (1941). Diveley v. Penn-Pittsburgh Corp., 332 Pa. 65, 70 (1938). In Grand-Morgan Theatre Co. v. Kearney (1930 C.C.A. 8th), 40 F.2d 235, it was said: "Whether there was sufficient light, alone, or whether there were ushers, or a sufficient number of ushers in attendance, standing alone, would not constitute negligence. These might be contributing factors, or, under all the facts and circumstances, might be elements, together with other conditions that might constitute negligence. The question here is not whether the theater was dark, nor whether there were ushers present to assist plaintiff to his seat, as these facts and circumstances were known alike to the defendant and the plaintiff, but whether the defendant had the premises in a reasonably safe and suitable condition to protect patrons against injury." See, also, Hardman v. Stanley Co. of America, 125 Pa. Super. 41 (1937); Rissell v. Lycoming Amusement Co., supra, at p. 408; May v. Warner Brothers' Theatres, Inc., 153 Pa. Super. 181 (1943); 143 A.L.R. 61.
Assuming, however, that insufficient lighting, standing alone, without proof of the existence of any accompanying danger which proper lighting would have revealed might raise an issue for the jury, has the plaintiff furnished such proof? There is no evidence that the theater was not lighted as such places usually are, in the exercise of reasonable care, under the circumstances. There is no proof that the defendant deviated from the ordinary standards in furnishing light. In Falk v. Stanley Fabian Corp., 115 N.J.L. 141, 178 A. 740 (1935), where in directing a verdict for defendant it was said: "A moving picture house necessarily operates in partial darkness. With a flood of diffused light there would be no picture. On the other hand, if there were absolute darkness, entrance and exit of patrons during the showing of a picture would be practically impossible. There is a wide range between these two conditions. To provide too much light is to spoil the entertainment for the patron. To provide too little is to impede or make dangerous his coming and going. Where is the line that marks ordinary care? Is it to be determined in each specific instance as an isolated fact without regard to standard equipment or prevailing practice? We think not. Grave difficulties would attend such a course, for it appears that the degree of illumination must be something of a compromise between two opposing objectives — successful showing of the picture, which calls for darkness, and the safety of those for whom the entertainment is provided, which calls for light. The misadventures that may befall persons moving about in a darkened room are legion, both in number and in variety of incident. It has been held that a moving picture operator violates no duty to a patron if, while a picture is being shown, the condition of light is that ordinarily used in exhibiting moving pictures to enable the audience to get a reasonably clear view of the image thrown on the screen. Rosston v. Sullivan, supra. We understand that to be the law. Also, in our opinion, the person who sues upon the ground that the condition of light was not equal to that ordinarily used for such purposes should submit some proof of the ordinary usage, thus manifesting the deficiency." See, also, Peck v. Yale Amusement Co., Mo. (1917), 195 S.W. 1033; Barrett v. Van Duzee, 139 Minn. 351, 166 N.W. 407 (1918). There is nothing in the evidence to warrant a finding that the theater and the aisles were darker than was reasonbly necessary or customary: Rosston v. Sullivan, 278 Mass. 31, 179 N.E. 173 (1932); Bergstresser v. Minnesota Amusement Co., 68 S.D. 579, 5 N.W.2d 49 (1942), 143 A.L.R. 53. Nor has the plaintiff shown the want of ordinary care in defendant's failure to keep lit any lights which should have been, but which were not operating at the time: Cathcart v. Sears Roebuck and Co., 120 Pa. Super. 531, 536 (1936); Andre v. Mertens, 88 N.J.L. 626, 96 A. 893 (1916); Emery v. Midwest Amusement and Realty Co., 125 Neb. 54, 248 N.W. 804 (1933).
Next, does the evidence support the charge of lack of sufficient illumination "in view of the peculiar construction" of the stairway? It will be noted that in those cases where liability has been imposed upon the proprietor of a theater, some unsual dangerous condition has attended the lack of illumination. In Haugh v. Harris Brothers Amusement Corp., supra, there was proof of a greater degree of darkness at the point where the plaintiff fell than existed elsewhere in the aisle, and in addition, there was proof that where the plaintiff fell there was a platform level with no seats on it, onto which the plaintiff was forced to step, and the cause of plaintiff's injury was a sixteen inch drop to the next level, whereas all the rest of the steps in the aisle had uniform eight inch risers. The court said: "Thus it was natural to assume, in descending, that the steps widened out at this point and that there was a step where plaintiff expected to find one, and not, as was the fact, that there was a sixteen inch drop of which no warning was apparent. As was contended in the argument, this created a physical condition which a jury might properly find required lighting." (Italics supplied) In Dondero v. Tenant Motion Picture Co., 94 N.J.L. 483, 110 A. 911 (1920) (cited in the Haugh case), in addition to the lack of illumination, there was a structural condition characterized by the court as a "pitfall". In New Theatre Co. v. Hartlove, 123 Md. 78, 90 A. 990, (1914) (also cited in the Haugh case) in addition to lack of illumination, there was an unprotected orchestra pit into which plaintiff plunged. In Olsen v. John Hamrick's Tacoma Theaters, 9 Wn.2d 380, 115 P.2d 718 (1941), the dangerous condition consisted of a peculiar construction of an eleven inch drop and corner step leading from the last row, termed by the court a "trap". In Praia v. Allied Owners Corp., 241 App. Div. 740, 269 N.Y. Supp. 834 (1934), plaintiff's foot went down into a seven and one half inch drop in a row between seats, which drop plaintiff could not see, nor expect. In Rabinowitz v. Evergreen Amusement Corp., 137 Misc. 387, 244 N.Y. Supp. 43 (1930) the step on which plaintiff fell was deeper than all the rest of the steps in the aisle, and this was shown to have caused the fall. In Tovey v. G. E. Lothrop Theatres Co., 288 Mass. 346, 193 N.E. 19 (1934) in addition to lack of illumination, the aisle carpet causing the fall was shown to have been worn, torn, and curled up higher than the level of the aisle. The mere variance in width in the alternating wide and narrow steps did not make them inherently dangerous: Schwartz v. International Vaudeville Co., 150 Misc. 582, 269 N.Y. Supp. 642 (1934); Loew's Nashville and Knoxville Corp. v. Durrett, 18 Tenn. App. 489, 79 S.W.2d 598 (1934). Cf. Falso v. Poli-New England Theatres, 127 Conn. 367, 17 A.2d 5 (1940). The plaintiff has not shown that this construction was unusual or dangerous or involved anything different from the ordinary construction of steps in a theater balcony. Plaintiff's cross examination of the theatre manager revealed that five other theaters in Philadelphia have similar alternating wide and narrow steps in the balcony aisles: the Mastbaum, Earle, Fox, Stanton, Boyd, all downtown theaters, as is the Stanley. There is no evidence that the stairway was built or maintained in an improper way. Steps and stairways of ordinary construction are reasonably safe when used as a means of overcoming differences in level. There was no irregularity in the height of the steps, which was the situation in Haugh v. Harris Brothers Amusement Co., supra.
In our view the plaintiff has not sustained the charge of negligence in the construction, maintenance or operation of its theater by the defendant: Wessner v. Blue Ridge Trans. Co., 338 Pa. 161 (1940). The most favorable inference that can be drawn from the plaintiff's testimony is that he moved about in a place of darkness, became confused and fell. The plaintiff has proved an accident and consequent damages, but his case is void of proof that the theater was not lighted as such places usually are, or that defendant was negligent in the maintenance or construction of its stairs, and that these caused his injuries. There is no evidence of actionable negligence to raise a question for the jury: Houston v. Republican Athletic Assn., 343 Pa. 218, 220 (1941); Copelan, et ux. v. Stanley Co. of America, 142 Pa. Super. 603, 608 (1940).
Passing on to the other consideration, the plaintiff's contributory negligence, it becomes more apparent that the motion for judgment n. o. v. should be sustained. If there was no structural defect and merely the question of the sufficiency of the lighting, was the plaintiff acting as a reasonably prudent person in moving about, under the circumstances? In Diveley v. Penn-Pittsburgh Corp., supra, at p. 69, Justice STERN said: "There is a multitude of cases of this type to be found in the reports, but they necessarily depend largely upon their individual facts. However, analysis would seem to justify their classification into two groups. There are those in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence. In such cases recovery is denied: Davis v. Edmondson, 261 Pa. 199; Hoffner v. Bergdoll, 309 Pa. 558; Modony v. Megdal, 318 Pa. 273; McVeagh v. Bass, 110 Pa. Super. 379; Hardman v. Stanley Co. of America, 125 Pa. Super. 41. There are other cases where there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances, contributory negligence will not be declared as a matter of law: Reid v. Linck, 206 Pa. 109; Haugh v. Harris Brothers Amusement Co., 315 Pa. 90; Murphy v. Bernheim and Sons, Inc., 327 Pa. 285; Leckstein v. Morris, 80 Pa. Super. 352; Rutherford v. Academy of Music, 87 Pa. Super. 355; James v. Smith, 93 Pa. Super. 485; Cathcart v. Sears, Roebuck and Co., 120 Pa. Super. 531. It may be stated, therefore, that the controlling factors in determining the question of contributory negligence in accident cases of this nature are the degree of darkness and the justification for the injured person's presence in the place of danger" (italics supplied). Note the comment in Hellriegel v. Kaufmann and Baer Co., 337 Pa. 149, 154 (1940).
If we apply the factors stated by Mr. Justice STERN, the plaintiff was guilty of contributory negligence. The lighting was so poor that, although it threw a low degree of light in the aisles, it cast none on the succeeding step which the plaintiff sought to tread. Though the plaintiff makes much of the fact that no picture was being shown at the time, it was obviously necessary that the theater be in semi-darkness for the purpose of the exhibition. Under these circumstances, the plaintiff was not justified in moving about in a place with which he was not familiar; he should have remained at the place of safety where he had previously been for a matter of ten minutes and until he could enlist the aid of an usher to guide him safely to a seat.
In Reid v. Linck, supra, a salesman invited a customer into a storeroom, and while following what he supposed to be the sound of the salesman's footsteps, having lost sight of the salesman, plaintiff fell into an unguarded elevator shaft. In Murphy v. Bernheim and Sons, Inc., supra, plaintiff fell into an elevator shaft when directed by an employee of defendant to "get on" the elevator, when in fact there was no elevator at the floor, but the safety gates were raised and in the dim light, because of the light cast, plaintiff was led to believe the elevator was in proper position. He used his senses, but his senses deceived him into believing that defendant had the elevator at the floor. Haugh v. Harris Brothers Amusement Co. is discussed, supra. In Leckstein v. Morris, supra, the plaintiff had followed the directions of an employee of defendant and in doing so had fallen on a broken step which was improperly lighted. In Rutherford v. Academy of Music, supra, plaintiff was injured while passing through a curved corridor, as directed by defendant's employee when she fell down a short flight of unlighted stairs, which she said she could not see. In James v. Smith, supra, plaintiff, acting on directions of an employee went to a door pointed out, opened it, took one step acros the threshold which was inadequately lighted and fell into the cellar. In Cathcart v. Sears, Roebuck and Co., supra, the plaintiff was injured as she proceeded along a darkened overpass leading to defendant's store and fell down steps over which defendant had placed a light, but in which there was no light bulb at the time of accident. In each of these cases the action of the plaintiff in moving about in a dimly lighted place was in consequence of an employee's direction which did not contain any warning of the danger, or in a place of assured safety, which was really unsafe. In each, the plaintiff was an invitee and had a right to assume that in the dimly lit place ordinary precautions for his safety would be taken: Murphy v. Bernheim and Sons, Inc., supra, at p. 288, "This does not excuse him from taking care but it decreases the degree of care the law imposes on one who would escape the imputation of negligence." In our case the plaintiff testified that he could see one step in front of him as he proceeded down the aisle. He also testified that he discovered the steps to be alternately wide and narrow at the second step, and it cannot be said, in the absence of light he had a right to assume the steps were anything different from what he found them to be as he walked down them. The conclusion is inescapable that if he had looked, and not assumed, he would have seen that the step on which he fell was a narrow step, not a wide one. In other words, there being sufficient light to permit him to see the step ahead of him as he walked, he cannot say it was anything but his inattention which led him to become confused and fall. When the plaintiff can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness: Bailey v. Alexander Realty Co., supra, at p. 367.
In Hardman v. Stanley Co. of America, supra, BALDRIGE, J., (now P. J.) after reviewing the pertinent cases, held: "Accepting plaintiff's account of the accident, she came to the darkened aisle, with which she was unfamiliar, and attempted to enter it without waiting for an usher to assist her or until the lighting was such that she could, with reasonable safety, proceed to a seat. It is universally known in this modern day when practically everyone attends moving picture shows that when pictures are being shown the auditorium is darkened most of the time and ushers are equipped with flashlights to help patrons to their seats. When darkness prevailed, the plaintiff should not have heedlessly entered the aisle of the balcony where the front part is lower than the rear. She should have reasonably anticipated that steps were a necessary part of such a construction and that the floor would not continue on the same level as where she entered the aisle. She knew that she could not see where she was walking, and common prudence should have dictated that it was unsafe for her to proceed" (italics supplied).
In Rissell v. Lycoming Amusement Co., supra, at p. 408, a case where the facts were similar to those in the instant case, in holding that the plaintiff was guilty of contributory negligence, STADTFELD, J. said: "Here we have plaintiff's own admission that she 'walked right on' down the stairway, in spite of the fact that she admitted that she did not know whether there was another step where she was attempting to step or not. Plaintiff also admitted that when she reached the platform at the top of the flight of stairs which she proposed to descend, there was enough light to see what she termed the 'outline of the first step'." In May v. Warner Brothers' Theaters, Inc., supra, plaintiff was injured as a result of falling down the flight of stairs leading to a lavatory and in holding the plaintiff guilty of contributory negligence, STADTFELD, J., said, pps. 185-186: "Plaintiff's conduct under the above circumstances shows clearly that he failed to exercise ordinary care in his own behalf. When he found himself at the head of the stairs and found that his shadow would darken the first step ahead of him, reasonably prudent conduct on his part required that he feel carefully with extended foot for the elusive step, as one naturally does when approaching a step in the dark. Murray v. Earl, 282 Pa. 517, 520. In addition, the plaintiff might well have taken advantage of the hand rail placed there for purposes of safety to steady his advance and to insure safe conduct. 'Shadows, where the lighting is otherwise adequate, furnish no excuse for failure to see. Mammana v. Easton Nat. Bank, 338 Pa. 225.' Lewis v. Duquesne Inclined Plane Co., 346 Pa. 43, 44. The testimony of the plaintiff clearly shows that he knew all of the conditions, that everything was apparent to him, and that he failed to exercise due care for his safety. There is nothing left for this court to do except to declare judicially that the plaintiff under the circumstances was guilty of contributory negligence as a matter of law precluding recovery on the case he presented, this without deciding whether or not the appellant was negligent either in the lighting facilities it maintained or the construction of its stairs." See, also, Wessner v. Blue Ridge Trans. Co., supra at p. 164, where plaintiff was injured leaving a compartment in defendant's rest room, and in declaring her guilty of contributory negligence, Chief Justice SCHAFFER said: "Her testimony shows her thoughtless inattention to her surroundings, her neglect to look, and her careless assumption that the floor levels were the same. Careless persons cannot be prevented from hurting themselves."
This case is clearly within the rule that where one is injured as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed, he will not be heard to complain: Bailey v. Alexander Realty Co., supra, at p. 368, "The duty of availing oneself of one's senses, for self-protection can seldom be breached with physical impunity and never with legal sanction. The undisputed facts here present admit of no reasonable deduction save that of the plaintiff's inattentiveness. ' "Negligence is the absence of care according to the circumstances," and it is always a question for the jury where there is a reasonable doubt, either as to the facts, or inferences of fact to be drawn from the testimony . . . But when facts constituting negligence are either admitted or conclusively established by undisputed evidence, it is the duty of the court to declare the law applicable thereto': Gates v. Penna. R. R., 154 Pa. 566, 572. The rule that a victim cannot recover damages for injuries sustained by him if he could have avoided the injury by the exercise of ordinary care bars this plaintiff's recovery."
Accordingly, defendant's motion for judgment n. o. v. is granted.
Having reached this conclusion for the reasons above stated, it is not necessary to consider defendant's motion for a new trial.
Plaintiff appealed.
I. G. Gordon Forster, with him Joseph F. M. Baldi, 2nd, for appellant.
Ward C. Henry, with him Herbert A. Barton and Swartz, Campbell Henry, for appellee.
Argued November 29, 1946.
The judgment of the court below is affirmed on the opinion of Judge CRUMLISH.