Opinion
No. 36045.
March 11, 1946.
1. THEATERS AND SHOWS.
A small moving picture theater need not furnish an usher for each patron, and patron cannot expect instant service on the part of an usher, but if such attendance is desired must wait a reasonable time for such services to be made available.
2. THEATERS AND SHOWS.
Patron of small moving picture theater who did not assert that theater had any knowledge of foot of another patron protruding in aisle or that it had been there long enough to charge theater with notice, or that she waited for an usher, but who did state that she failed to see an usher and thereupon started down aisle, could not predicate recovery for injuries sustained in fall caused by stumbling over other patron's foot on alleged failure of theater to furnish an usher.
3. EVIDENCE.
It is common knowledge that the auditorium of a moving picture theater must, during the exhibition, be in semi-darkness, and dark enough that the pictures may be viewed in clear perspective without unreasonable eyestrain.
4. THEATERS AND SHOWS.
A moving picture exhibitor has duty, as respects degree of lighting provided during exhibition, to conform in a fair and reasonable measure to the standards ordinarily and generally maintained by those engaged in operating establishments of a similar size and character in a sizeable area or a considerble section of the country.
5. THEATERS AND SHOWS.
Where small moving picture theater conformed to lighting standards ordinarily maintained by those engaged in that business throughout wide sections of the country and as to establishments of a similar size and character, and installation of lighting system was supervised by an experienced electrical engineer whose experience extended over many states and cities, patron who sustained injuries in fall caused by stumbling over foot of patron could not predicate liability of theater on alleged want of sufficient light in the theater to see obstacles in the aisle.
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
Heidelberg Roberts, of Hattiesburg, for appellant.
The burden of proof is on plaintiff to connect defendant with the injury complained of by evidence showing that at the time it occurred defendant owned, controlled, or operated the place of amusement or instrumentality where the injury occurred.
Kerns v. Dykes (Mo.), 48 S.W.2d 183; 62 C.J. 879, Sec. 80.
The defendant was guilty of no negligence at the time complained of.
Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Hammontree v. Cobb Construction Co., 168 Miss. 844, 854, 152 So. 279; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Suggs v. Saenger Theatres, Inc., et al. (La.), 130 So. 817; Givens v. DeSoto Bldg. Co. et al. (La.), 100 So. 534; Grand-Morgan Theatre Co. v. Kearney, 40 F.2d 235; Rosston v. Sullivan (Mass.), 179 N.E. 173.
The sole proximate cause of the fall, if there was a fall, resulted from the presence of the man's foot in the aisle.
Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912; Public Service Corporation et al. v. Watts, 168 Miss. 235, 150 So. 192; Mississippi City Lines, Inc., v. Bullock et al., 194 Miss. 630, 13 So.2d 34, 145 A.L.R. 1199.
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 reasonable clear view of the image thrown on the screen. 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. To hold otherwise would vary the result with each case and subject a moving picture operator to the danger of being found guilty of negligence, no matter what plan of lighting he adopted.
Falk v. Stanley Fabian Corp. (N.J.), 178 A. 740; Rosston v. Sullivan, supra.
The failure of a party to produce an available witness may create a presumption that the witness would not testify favorably to the complaining party.
Robinson v. Haydel et al., 177 Miss. 233, 171 So. 7.
Homer W. Pittman, of Hattiesburg, for appellee.
We contend that it was the duty of the defendant theatre to keep their building and premises in a reasonably safe condition for their patrons, that they failed in their duty in these respects: First, the defendant was negligent in permitting and allowing its lights and lighting equipment to become old, worn, dim, dilapidated and dangerous, and as a result of the condition of its said lights and lighting equipment, it was unusually dark in its said building. Second, it was the duty of the defendant theatre to furnish assistants or ushers in assisting patrons to find their seats because of the darkness in the said building, and it failed in these respects. Third, it was the duty of the defendant to use reasonable care and caution to keep its aisles or aisleways clear of any and all obstructions; that the defendant well knew that its patrons as a matter of habit extended their feet out in the aisles, and that on this particular occasion the defendant knew, or by ordinary care could have known, of the obstruction or the man's foot extended in its aisle, which created a dangerous hazard to other patrons and especially the plaintiff, and it failed in its duty to keep said aisle clear and free of obstructions.
See Meridian Amusement Concession Co. v. Roberson et al., 188 Miss. 136, 193 So. 335; Bentz et ux v. Saenger-Ehrlich Enterprises, Inc. (La.), 197 So. 659; Rutherford v. Academy of Music, 87 Pa. Super. 355, 357; Emery v. Midwest Amusement Realty Co., 125 Neb. 54, 248 N.W. 804, 98 A.L.R. 578; Hale v. McLaughlin, 274 Mass. 308, 174 N.E. 506, 98 A.L.R. 581; Southern Enterprises v Marek (Tex.), 68 S.W.2d 384, 98 A.L.R. 583; Lemoine v. Springfield Hockey Association, 29 N.E.2d 716; Olsen v. John Hamrick's Tacoma Theatres, 115 P.2d 718; Falso v. Poli-New England Theatres, 127 Conn. 367, 17 A.2d 5; Coleman v. Washington Theatre Co., 294 Mich. 343, 293 N.W. 674; Vale v. Indiana County Theatres Co., 120 F.2d 495; Denham Theatre v. Beeler, 109 P.2d 643; Maxfield v. Fox Kansas Theatre Co., 152 Kan. 716, 107 P.2d 685; Basye v. Craft's Golden State Shows, 111 P.2d 746; Carlyle v. Goettee, 13 S.E.2d 206; 62 C.J. 870.
Argued orally by M.M. Roberts, for appellant, and by Homer W. Pittman, for appellee.
Appellant operates the Lomo Theatre, a moving picture house in the City of Hattiesburg. There are five moving picture theatres in that city, one being a large and expensive place called the Saenger, and the other four, including the Lomo, are designated in the record as the small theatres. Appellee recovered judgment against appellant for personal injuries which she says she sustained in a fall in the aisle of the Lomo Theatre, caused by her stumbling over the foot of a patron protruding into the aisle, and she grounds her right of action upon (1) the failure of appellant to furnish an usher; and (2) the want of a sufficient light in the theatre to see obstacles in the aisles.
(1) There seems to be no serious dispute that ushers were on duty. The rule is that a theatre, such as this, is not required to furnish an usher for each patron and he cannot expect instant service on the part of an usher, but if such attendance is desired the patron must wait a reasonable time for such services to be made available. Johnson v. Mathews-Moran Amusement Company, 164 Or. 636, 102 P.2d 703, and compare Osborne v. Loew's Houston Company (Tex. Civ. App.), 120 S.W.2d 947. Appellee does not assert that she waited for an usher, but says that she failed to see one and thereupon started on down the aisle. It was not asserted that the theatre had any knowledge of the foot in the aisle or that it had been there long enough to charge the theatre with notice.
(2) It is a matter of common knowledge that the auditorium of a moving picture theatre must, during the exhibition, be in semi-darkness, and dark enough that the pictures may be viewed in clear perspective without unreasonable eyestrain. Many patrons prefer an auditorium for such exhibitions which is almost entirely dark, while others insist upon sufficient light that they may see who else is in attendance. The problems of eyestrain depend to a large extent upon technical knowledge and experience, and little is gained from individual preferences in that respect. Much depends also upon the size of the auditorium and particularly as to the height of its ceiling, and there are still other considerations.
In view of all this, the courts have not found it practical to attempt to lay down a rule based upon particular specifications as to what amount of darkness is required for the primary purpose of best exhibiting the picture, and what residuum therefrom is to be kept to enable patrons to make their way into the auditorium or to leave it or to move about therein when necessary. By the weight of authority, the courts have adopted the rule that it is the duty of the exhibitor as respects this problem of lighting to conform in a fair and reasonable measure to the standards ordinarily and generally maintained by those engaged in that business. A recent review of the authorities is found in Bergstresser v. Minnesota Amusement Company, 68 S.D. 579, 5 N.W.2d 49, 143 A.L.R. 53, and see the elaborate annotations in the volume last cited.
We adopt that rule for moving picture theatres as we have already done, as to situations within similar reason, in Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447, 448, wherein we said: "It is the more dependable from the standpoints both of practicability and of justice to look to the customary generally recognized and commonly observed standards in any non-established line of business or occupation, when that business or occupation has many members, and to the sanctions of tried experience in such business or occupation for guidance as to what is adequate and proper therein rather than to elevate, above the sanctions of such long-tried and general experience, the notions or preferences of a particular jury, many of whose members have had no experience whatever in that business and sometimes with little or no opportunity for particular observation of it, save only that the courts and juries shall possess the reserved right to overrule any such customary standards of any business when the standards adopted and observed by that business are nevertheless so unreasonably unsafe, and so obviously so, that impartial persons could not well be in disagreement upon the issue, and, as we have already stated, such is the rule of law in this state."
The reason for the adoption of that rule, as applicable here and as is manifest upon its statement, is to avail of the combined aid of technicians and experts on lighting and of the lessons of experience over many years, and in a business which has many members and which extends over a large area or territory serving all classes of people, and that when finding what is the customary, generally recognized and commonly observed standards, to require adherence to that standard as a rule of conduct. A customary standard under a rule of that character must have a greater or less territorial extent according to the reasons which make the reference to it pertinent, and thus the question here presented is not to be answered by the course which may happen to be observed in any one community or in any one theatre, but in a sizeable area or a considerable section of the country. As quoted by Judge McGowen in Yazoo M.V. Railroad Company v. Mansfield, 160 Miss. 672, 684, 134 So. 577, 580, "One swallow maketh not a spring nor a woodcock a winter."
In a business where there are thousands of members everywhere, none would contend that the practice observed by one community where there are only five members should be allowed to set the standards for all the surrounding area or region, from which it follows that the methods pursued by one or more of the five members of a single community is not allowable as the yardstick for an obligatory rule of conduct of any one of them. To summarize, the reference of the rule is to a generally recognized standard throughout a wide adjacent territory and to establishments of a similar size and character in that territory.
The case in behalf of plaintiff was attempted to be made out by an unfavorable comparison of the lighting of the theatre in question with that maintained in the large and expensive theatre called the Saenger, but obviously this is not within the stated rule. A few other witnesses made unfavorable comparison of the Lomo with three others in Hattiesburg, but the greater number of the witnesses said that the Lomo compared favorably with all the others except the Saenger and several of them included the Saenger. As we have already said, however, inquiries confined to four or five theatres in one town or community is not within the rule as to what is the customary standard maintained and observed in that business generally, which necessarily must include an area or section broad enough to come within the reasons which give the rule its existence. It must include many members, not merely a few.
On the other hand, every witness who was called on to make any comparison of this theatre as respects its lighting with others within the general area or section of the county testified that the Lomo compared well and favorably with the average of the smaller theatres in this and adjoining states or areas. Thus, according to the undisputed testimony, this theatre conformed to the standards ordinarily maintained by those engaged in that business throughout wide sections of the country, and as to establishments of a similar size and character, and among the witnesses so testifying was an expert on theatre lighting, a member of the International Association of Electrical Inspectors. In addition to which, it was shown that the installation of the lighting system in the Lomo Theatre was supervised by an experienced electrical engineer, his experience and work having extended over many states and cities, and that from that time the system was inspected and approved by men trained in that business.
The peremptory charge requested by appellant should have been granted.
Reversed and judgment here for appellant.