Opinion
October 9, 1928.
November 21, 1928.
Negligence — Theatre — Injury to patron — Evidence — Case for jury.
In an action of trespass to recover damages for personal injuries it appeared that the plaintiff was a patron of defendant's motion picture theatre. When she took her seat one side of it gave way, causing her to be thrown to the floor, injuring her. Defendant offered evidence that he had exercised reasonable care in providing a safe seat and had an inspection made each day for the purpose of maintaining the seats in good repair.
In the light of such evidence the case was for the jury and a verdict for plaintiff will be sustained.
The testimony offered by the defendant to establish that he had exercised due care to furnish a safe place for his patrons was not entitled to any more weight than any other oral evidence and the credibility of the witnesses, as well as the sufficiency of the inspection was for the jury.
Appeals Nos. 123 and 124, October T., 1928, by defendant from judgment of C.P., No. 1, Philadelphia County, June T., 1924, No. 14046, in the case of Ella Durning, a minor, by her father and next friend, Charles Durning, and Charles Durning in his own right, v. Samuel Hyman.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Trespass to recover damages for personal injuries. Before TAULANE, J.
The facts are stated in the opinion of the Superior Court.
Verdict for the plaintiff, Ella Durning, for $1,500 and Charles Durning for $1,000 and judgment thereon. Defendant appealed.
Error assigned, among others, was the refusal of defendant's motion for judgment non obstante veredicto.
George F. Lowenthal, of Horton Lowenthal, for appellant, cited: Hyman v. Durning, 286 Pa. 376; Glynn v. Lyceum Theatre Co., 87 Conn. 237; Strobel v. Park, 292 Pa. 200.
A.B. Hirsch, of Hirsch and Salus, for appellee, cited: Sellmer v. Ringling Brothers, 62 Pa. Super. 410; Shafer v. Lacock, 168 Pa. 497.
Argued October 9, 1928.
The minor plaintiff, a girl of thirteen, was a patron of a moving picture theatre operated by defendant. When she took her seat one side of it gave way, causing her to be thrown to the floor. Personal injuries resulted. At the trial of the action instituted to recover damages, she and one of her companions testified that the seat "broke." Defendant offered evidence that he had exercised reasonable care in providing a safe seat and had a proper inspection made every day for the purpose of maintaining the seats in proper order. The verdict was for plaintiffs. The sole question presented for our consideration is whether the trial judge should have given binding instructions for defendant. It is urged upon us in his behalf that he was entitled to binding instructions because the uncontradicted evidence offered by him showed that the premises were properly inspected and that he exercised due care to prevent harm to his patrons. Apparently this contention results from a misconception of what was decided by our Supreme Court when this case was before it on an appeal from the entry of a non-suit upon the same evidence which plaintiffs presented at the second trial. See Durning v. Hyman, 286 Pa. 376. In reversing the judgment of non-suit that tribunal said, inter alia: "The defendant, in such cases, is called upon to show, not necessarily the cause of the accident, but that he exercised due care to prevent harm. If such facts appear in the testimony of the plaintiff, a non-suit should be entered, or, if established in defense, binding instructions are properly given, but in one way or the other, a satisfactory explanation is required." We do not understand this expression to mean that oral testimony offered by a defendant in this character of case, to establish the fact that he exercised due care to furnish a safe place for his patrons, is entitled to any more weight than any other oral testimony. For in the same opinion, the court cited with approval a number of cases from other jurisdictions, holding that in the absence of proof by defendant showing a condition of uncontradicted facts establishing a reasonable degree of care to keep the premises in proper condition, the question is for the jury. The court below correctly held that the credibility of the witnesses called to establish this defense, as well as the sufficiency of the inspection, was for the jury. However indisputable the proof may have been, depending as it did on oral testimony, the jury was the sole body to determine the weight to be given to it; the credibility of a witness is always for the jury: Sorenson v. Quaker City P. Adv. Co., 284 Pa. 209.
The judgment is affirmed.