Lasell v. Tri-States Theatre Corp. , 233 Iowa 929 ( 1943 )

There is no substantial dispute in the record as to the material facts bearing on the question of contributory negligence. I am compelled to dissent from the conclusion of the majority on that question. I think there should have been a directed verdict for defendant and that all discussion of the alleged errors urged by appellant is immaterial and unnecessary.

Plaintiff herself testifies:

"When we went into the Des Moines Theater I was ushered to my seat by an usher there. He had a flashlight. It cast a light on the floor so you could see to get to the seat. * * * We didn't get in at the beginning of the picture. * * *

"Within the place where the audience watches the show the interior was quite dark, just real dim lights. * * *

"Well I got up and started to walk out, and I reached back for Darlene's hand, and of course, looked back at the floor, tried to look at it, but it was so dark you couldn't see the floor, so I just walked out, or started to walk out. I hadn't stepped any more than two steps, I think, until I fell just as soon as I come to the end of the seat and stepped down here, lost my balance and went headlong into the seats on the other side of the aisle. * * *

"At the time I got up and walked out I did not know there was any set-off where the floor goes into the aisle. When the usher ushered me into my seat he did not tell me there was a step-off there. * * * I did not notice that condition there when I went into the seat. * * * Q. I ask you to state whether you were looking or not as you got up to leave. A. I tried to see, but it was so dark that you couldn't see the floor there where I came out."

There is more of her testimony but the foregoing is the substance of her direct examination bearing on this question.

On cross-examination she says:

"I came into the seat [where] I was sitting over the same path I went away on. I suppose I stepped up this step when I went into the seat but I didn't notice it."

Plaintiff was sixty-four years old at the time of the accident and weighed 223 1/2 pounds.

Under this record it seems to me plaintiff must be held guilty of contributory negligence as a matter of law. It is true she was an invitee, but there was in the situation a mutuality of interest and of duty. She was in the theater for her own and not for defendant's purposes. She had a right to assume defendant would not be negligent but there was a reciprocal obligation on her part to exercise care for her own safety. See 45 C.J. 956 et seq.; Hammer v. Liberty Baking Co., 220 Iowa 229, 233 et seq.,260 N.W. 720.

When plaintiff came in, defendant lighted her past the danger spot. Her granddaughter went up the step ahead of her. Plaintiff knew the darkened condition of the theater. She knew defendant's usher used a flashlight in escorting her to her seat. "It cast a light on the floor so you could see to get to the seat." The darkened condition of the theater was necessary to the very purpose of plaintiff's presence there. It was a warning to her of danger. Hammer v. Liberty Baking Co., supra; Central Publishing House v. Flury, 25 Ohio App. 214, 157 N.E. 794, 798 [aff.118 Ohio St. 154, 160 N.E. 679]; Kurre v. Graham Ship by Truck Co.,136 Kan. 365, 15 P.2d 463, 466. It is incredible that she could have stepped up out of the aisle to her seat without knowing of the difference in floor level. If she paid no attention to what she was doing when she went in, she was indeed negligent. She knew she would have to retrace her steps to get out. If there was danger she knew of it then, or in the exercise of due care should have known of it. A person is conclusively presumed to know what he would have known if he had made ordinary use of his senses. Seabridge v. Poli, 98 Conn. 297,119 A. 214; De Honey v. Harding, 8 Cir., N.D., 300 F. 696. See Buchholtz v. Incorporated Town of Radcliffe, 129 Iowa 27,105 N.W. 336.

Plaintiff sat throughout the performance only one seat removed from the aisle, which was at the lower level. A part of that time her daughter sat in the seat at her right and next to the aisle, and for a time that seat was vacant. Some five or ten minutes before the accident the daughter left her seat beside plaintiff, and in stepping down into the aisle staggered on this step but happened to "catch" herself. This happened right beside plaintiff.

When plaintiff started to leave she knew the theater was still dark and that there was no usher with a flashlight to light her out as she had been lighted in. She could not, as a reasonably prudent person, close all her senses to the situation into which she had voluntarily (even though by defendant's invitation) placed herself. She was bound to exercise due care, even though she was an invitee. Kurre v. Graham Ship by Truck Co., supra. When she "tried to look" at the floor, as she testifies, and found that "it was so dark you couldn't see the floor," but nevertheless "just walked out or started to walk out," she did not exercise the due care required by law.

Either she failed to use her intelligence when she entered or she ignored or forgot when she went out what she learned as she came in. In either case she must be held negligent, unless her attention, at the moment of departure, was diverted by some unexpected fact or circumstance of which there is no showing in the record. Sanderson v. Chicago, M. St. P. Ry. Co., 167 Iowa 90,149 N.W. 188.

Forgetfulness is not such a diverting circumstance. Davis v. City of Dubuque, 209 Iowa 1324, 1328, 1329, 230 N.W. 421. In fact, forgetfulness of danger is itself usually negligence. Miller v. White Bronze Monument Co., 141 Iowa 701, 711,118 N.W. 518, 18 Ann. Cas. 957; 38 Am. Jur. 863, section 187; Reynolds v. Los Angeles G. E. Co., 162 Cal. 327, 122 P. 962, 39 L.R.A., N.S., 896, Ann. Cas. 1913d 34; Rice v. Goodspeed R.E. Co.,254 Mich. 49, 235 N.W. 814.

We have said: "* * * generally speaking, the very essence of negligence is inadvertence." Cahill v. Illinois C.R. Co.,148 Iowa 241, 248, 125 N.W. 331, 333, 28 L.R.A., N.S., 1121.

If defendant could, under the record, be found guilty of negligence which was the proximate cause of the accident (a proposition I do not pass on), plaintiff was clearly guilty of contributory negligence. See St. Louis, I.M. S. Ry. Co. v. Forbes, 63 Ark. 427, 39 S.W. 63; Ware v. Evangelical Baptist B. M. Soc., 181 Mass. 285, 63 N.E. 885; Watkins v. Piggly Wiggly Bird Co., 8 Cir., Mo., 31 F.2d 889.

The burden was on plaintiff to show freedom from contributory negligence. If her conduct contributed in any manner and to any degree to her injury she is not entitled to recover. Riess v. Long, 229 Iowa 378, 294 N.W. 592. The same condition of darkness that imposed an extra degree of care upon defendant placed a similar burden upon plaintiff.

Citations from other jurisdictions, and even our own decisions, are inconclusive as precedents. Each case must stand on its own facts. It seems clear to me that a verdict for plaintiff under this record would have had to be set aside. The cases cited in the majority opinion do not fit the facts revealed by this record.

I express no opinion as to any of the other questions discussed by the majority opinion. For the reasons herein stated, I think the case should be affirmed.

HALE, J., joins in this dissent.