Cox v. United Detroit Theatres Corp. ( 1943 )

Laura Cox, an elderly lady, claims that on October 5, 1941, at 6 p.m., she and her daughter-in-law entered defendant's "Michigan Theatre," a moving picture house in Detroit, Michigan, and after unsuccessfully attempting to secure seats on the lower floors, went up eight flights of stairs to the top balcony where there is an open space in the rear back of the rows of seats. The balcony is divided by aisles with stairways down which patrons descend to the rows of seats. The lights in the theater are necessarily dimmed while a motion picture is being shown. Plaintiff claims that only small lights shaded by oval covers marked the heads of the stairway along the aisles that she used and that there were no lights at all at the ends of the rows of seats at the various points along the stairway although there were lighting fixtures evidently there for that purpose. Plaintiff claims that on arriving at the head of the stairway at the rear of the balcony, she waited five minutes so as to accustom herself to the darkness, and thereupon she tried to feel her way to a seat. She claims that the stairway was totally dark; that the steps down the aisle were not uniform in size, and that at one of the steps the carpet was loose, extending one and one-half inches to two inches over the edge of the steps. No usher escorted plaintiff to her seat. She claims that after she took two steps down from the rear of the balcony and while groping her way, as she attempted to take a third step, she fell and injured herself very seriously. After sitting down for 10 minutes, she was helped downstairs, went home, then to a hospital, and then home again where she remained for six weeks with her leg in a cast, and that she had not yet fully recovered from her injury. She alleges that the accident was due to the total darkness along the aisles and the failure to keep the stairway in safe condition to avoid injury to the patrons of the theater.

Defendant, on the other hand, claimed that the steps were lighted. It makes no claim that the lights suddenly went out due to the bulbs burning out or the fuses being blown. It became wholly a question whether the stairway was lighted or not, not whether the lights had gone out and for that reason it was not lighted. The judge distinctly charged that it was not only necessary for plaintiff to prove the lights were out, but also that defendant knew they were out, and had sufficient time before the accident to remedy the situation. This was error as the question was whether there was sufficient light turned on or not. There was some testimony that the lights in the gallery were not lighted on weekends.

Mr. Justice STARR speaking for the court in Hulett v. GreatAtlantic Pacific Tea Co., 299 Mich. 59, 68, stated:

"In those cases where the alleged hazardous condition was caused by the acts of third parties or weather conditions or other conditions over which the storekeeper had no control, the plaintiff was required to prove that the defendant had notice of the same."

He referred to numerous cases including Oppenheim v.Pitcairn, 293 Mich. 475, where the rule is also set forth. He also quoted with approval the correct rule set forth in KrogerGrocery Baking Co. v. Diebold, 276 Ky. 349 (124 S.W. [2d] 505), as follows:

"Negligence may consist either in failure on the part of the store proprietor to discover the dangerous condition, though created by a third person, within a reasonable time, or in the creation of the dangerous condition by himself or his agents or servants. Where he has created a dangerous condition or negligently permitted such condition to exist, knowledge on his part is inferred."

In the instant case, plaintiff claims that defendant had created a dangerous condition and negligently permitted such condition to exist, and, therefore, knowledge on the part of defendant would be inferred. Thus it became a jury question whether plaintiff's contentions were correct or not. There was no claim that the lights suddenly went out. It was claimed that they were not lighted at all or at least there was insufficient lighting so as to create a dangerous condition. Under the charge the jury was necessarily obliged to find for defendant.

The jury brought in a peculiar verdict. It held that defendant was not guilty of negligence but recommended that plaintiff receive compensation for medical services and loss of time from work to date. After the jury had brought in their verdict and left the courtroom, the court disclosed that the jury had sent in a note the night before and asked if they could make a decision coupled with a recommendation; that the court answered that they could, but the recommendation would not affect their decision. This was all done without the knowledge or consent of counsel. As this form of verdict and the action of the judge will not recur on a new trial, we need not discuss it. The judge erred in charging the jury that it was necessary for plaintiff to show that defendant had notice of the dark condition of the theatre in order to rectify it.

The judgment is reversed, with costs to plaintiff, and a new trial granted.

CHANDLER, STARR, WIEST, BUSHNELL, and SHARPE, JJ., concurred with BUTZEL, J.