Leybold v. Fox Butte Theater Corp.

An every-day situation is here disclosed. All persons in their daily pursuits are exposed to some hazards of injury; but the proof of the occurrence of injury does not justify a recovery, since a proprietor of a place into which others are invited is not an insurer of their safety. (Mellon v. Kelly, 99 Mont. 10,41 P.2d 49.) The situation here is analogous to that in the Mellon-Kelly Case. There one properly upon the premises of the proprietor of a garage was injured as the result of action by another properly in the garage, and no act of the proprietor of the garage was shown to have had any causal connection with the injury. And, additionally, here, respondent, by her own conduct and by that alone, made possible her injury. However commendable may have been her consideration of other patrons of appellant's theater, the fact remains that it was this needless action of hers which made possible her injury.

In other jurisdictions courts of last resort have spoken upon the subject of the use of swinging doors and, for practical purposes, I claim, have held against any liability upon the part of the proprietors of a place of amusement in circumstances such as are disclosed in this case. (See Dolan v. Callender etc.Co., 26 R.I. 198, 58 A. 655; Olson v. Whitthorne Swan,203 Cal. 206, 263 P. 518, 58 A.L.R. 129; Smith v. Johnson,219 Mass. 142, 106 N.E. 604, Ann. Cas. 1916D, 1234, L.R.A. 1915F, 572; Buzzell v. R.H. White Co., 200 Mass. 129, 107 N.E. 385;Pardington v. Abraham, 93 A.D. 359, 87 N.Y. Supp. 670; affirmed, 183 N.Y. 553, 76 N.E. 1102; Mangel v. Bronx BoroughBank, 241 A.D. 160, 271 N.Y. Supp. 432; Seckler v.Pennsylvania R.R. Co., 113 N.J.L. 299, 174 A. 501; Feith v. Kresge Department Store Corp.,114 N.J.L. 286, 176 A. 386; Crump v. Hellams, (Tex.Civ.App.)41 S.W.2d 288, 290.) A somewhat similar situation, wherein the same principle was applied, is presented in the case of Coxey v. Guala, 112 Pa. Sup. Ct. 460, 171 A. 484. Complaint was made of failure to have a hand-rail on a landing leading from one floor to another. The court said that there was nothing to show that the absence of a hand-rail was unusual construction or that it tended to mislead a person or misdirect the steps of an ascending or descending invitee. At no stage of the proceedings in the court below did counsel for respondent cite any decision to a contrary effect. I confidently assert that no such citation can be made to this court. Appellant operated a place where large numbers of people congregated. The patrons paid for admission and especially at the close of the last show for the day left in large numbers. Years before the accident doors had been installed which were without knob, handhold, bar or checking device, and the doors closed at times with the force of a fifty-pound blow. To guard against injury to its customers appellant would open the doors and block them or keep attendants at the doors. The evidence so shows. Children were allowed to enter and respondent had the care of a four-year-old child on her hands. As she was leaving with her child two youths rushed past and as respondent was leaving she suffered the injuries alleged in the complaint. The duty was upon the appellant to exercise reasonable or ordinary care to make the premises safe for plaintiff and its other customers. (Montague v. Hanson, 38 Mont. 376, 383, 99 P. 1063.)

Appellant states in its brief that respondent was without any authorities in the lower court. We there cited Bennetts v.Silver Bow Amusement Co., 65 Mont. 340, 350, 211 P. 336. The ruling of that case is against defendant's contention. The holding is to the effect that when respondent, in pursuance of appellant's invitation, paid the stipulated admission price she had a right to assume that it had furnished a safe place for her to witness the show, and also that it had furnished safe means of egress from the show house. It certainly was not the exercise of ordinary care to supply a door which flew back with a fifty-pound force, for plaintiff's egress. The door should have been opened and blocked or there should have been an attendant at the door. Otherwise there should have been some knob or checking device on the door. When none was there and no warning of the danger having been given, it was a jury question whether defendant was guilty of negligence in the case. (See, also, Brown v. ColumbiaAmusement Co., 91 Mont. 174, 189, 6 P.2d 874; Branch v.Klatt, 165 Mich. 666, 131 N.W. 107, 109; Emery v. MidwestAmusement Realty Co., 125 Neb. 54, 248 N.W. 804, 806;Chardon v. Alameda Park Co., 1 Cal. App. 2d 18,36 P.2d 136, 137; Johnstone v. Panama-Pacific InternationalExposition Co., 187 Cal. 323, 202 P. 34; Kiernan v.Manhattan R. Co., 27 Misc. 841, 58 N.Y. Supp. 394.)

Appellate cites Olson v. Whitthorne Swan, 203 Cal. 206,263 P. 518, and certain other cases. But in none of these cases was there any evidence of negligent construction or maintenance. Neither in the Olson case nor in the other cases was there any evidence of the want of knobs, handholds or checking devices, and in none of these cases did the door swing or slam back with a fifty-pound blow. A door, such as appellant was using, should have some checking device on it, so that its speed is reduced as it is swinging back into place. We also call attention to the fact that the cases cited by appellant are principally about doors of stores. A store is not a subject for fair comparison with a theater.

Respondent relied upon the attendant. With the doors in the condition as shown by the record and with no attendant there and without having the doors opened and blocked at the time when plaintiff was leaving the theater, the jury was fully justified in finding that the appellant did not exercise reasonable or ordinary care in maintaining the place, to which it invited plaintiff and for the attending of which it charged her an admission price, in a reasonably safe condition. The verdict should be affirmed. Plaintiff brought this action to recover damages resulting from her fingers being caught between the edges of two swinging doors at the entrance of the theater of the defendant known as the American Theater, in the city of Butte. Plaintiff and her husband, together with two of their children, attended the picture show at defendant's theater on the evening of April 27, 1934, and paid for their entertainment the usual admission fee. The injury of which complaint was made occurred at the time plaintiff was leaving the theater.

With reference to the acts of negligence on the part of defendant, plaintiff alleged in her complaint that "it was always customary for the defendants to have some one at the doors of said American Theater so that people and patrons of defendants, leaving said American Theater would not be hurt or injured by any of the swinging doors swinging back and hitting or striking the hands of any of its patrons; and the plaintiff had theretofore attended shows at said American Theater upon the invitation of defendants; that plaintiff knew that the defendants had kept employees and servants at said doors of exit from said American Theater to keep defendants' patrons from being hurt by swinging doors; and plaintiff relied upon this custom. * * * That defendants did not have anyone near said doors to protect the members of the public, or this plaintiff, from being injured; that defendants failed and neglected to warn the plaintiff that it had no one near said doors to protect plaintiff, and defendants did not warn plaintiff that she was liable to be hurt or injured when she would attempt to walk out of said theater; that defendants did not provide any device, to-wit, a bar, knob or handhold on said doors, to protect members of the public, or plaintiff, from being hurt by said door or doors; * * * nor did the defendants have anyone near said doors to prevent the violent swinging back of said door or doors."

The defendant by answer admitted that the fingers of plaintiff were caught between the two swinging doors while she was leaving the theater after attending the show as a patron, and denied all of the other important allegations. It affirmatively alleged contributory negligence on the part of plaintiff. The cause was tried before the court sitting with a jury.

The witness Frame, who qualified as an expert carpenter and builder and who was familiar with these doors, testified on behalf of the plaintiff, giving the following description of these swinging doors: "The doors are what is known as a double-acting swinging door, each door 38 1/2 inches in width, that is three feet two and a half inches in width, and they are seven feet and a half inch in height; besides there is an inch piece nailed on the frame all the way around which is brought about from the particular type of hinge that is used. It is one inch; the width of the door in this case is approximately two inches. The reason for that piece being nailed on the frame is to make up for the barrel-type hinge that is employed, a hinge something like on the door behind you, the barrel-type hinges. There is a barrel on each side of the door containing a spring. The spring is incased in this barrel; it is known as a Boomer spring hinge. * * * There is nothing on the door at all, on the surface of the door, on either side, not even a push plate on this door, or there's no handhold or grip of any kind. The center part of the door consists of a plate glass about five feet long and approximately two feet wide, thick, heavy plate glass, held in place by the molding on either side. The widest part of the door around the glass is approximately ten inches in width, and the bottom part of the door, known as the belt, is about sixteen inches in width; the upper part of the door is the same width as the stiles or side portions of the door." This witnes testified over objection that doors such as he described above, without any handholds or checking devices, "are not safe at all."

Plaintiff, her husband, and their two children, aged four and six years, respectively, after attending the show on the night in question and at about 11 o'clock, "started to leave the theater." They went through the swinging doors leading into the lobby of the theater, where plaintiff and her husband stopped to put on the children's coats. The husband and the older child proceeded through the swinging doors leading to the sidewalk before plaintiff and her four-year-old son continued on their way. She described her movements thereafter as follows: "I was intending to step out upon the sidewalk, through the east set of doors, east of the ticket office. As I left the theater, when I came to the doors, I pushed the right door, or the west door of the east set, towards the sidewalk, and I held that open with my right hand to let my little boy go through, and then I was letting it back so that it wouldn't fly against anyone else and injure them, and, as I was doing that, someone pushed through the east door and let that door swing back and, before I could get my hand out, it caught my hand in between the two doors. There was nothing upon these doors in the way of a handhold or knob or any other similar device. I had been through these doors before. This evening it was not the same as it had been before. Before there was usually an attendant there; or other times when I attended the theater, these doors, at the end of the show when the crowd was coming out, they were left opened; they were blocked open. As I was passing out through the door there were other people around trying to get out; the crowd was coming from out of the show. There was no way for me to take hold of the door other than pushing it as I did. If there were a hand-railing or handhold or knob there I would have had a hold of that." She further testified: "I kept my hand on the door, and I was letting it go back slowly so that it wouldn't swing against anyone. * * * There was two young boys — I imagine they were about seventeen or eighteen years old — and they pushed through the door, the east door, and they didn't hold onto it at all; they just let it fly. * * * I wasn't out over a foot from the door, because I was still hanging onto the door when my hand got caught. I couldn't have been very far from the doors. * * * It [the door] smashed my hand; caught my hand in between the two doors; smashed my index finger, and the rest of my hand was bruised and skinned."

Plaintiff had attended the theater at least once previously during the month of April. She had resided in Butte for nineteen years and had frequented "picture shows a good deal before she had children and possibly afterwards when she could get away." In general, "she was familiar with the American theater house." She testified as to her reliance upon the custom of an attendant being present at the door, in the following manner:

"A. * * * Nobody warned me or cautioned me that there was no attendant there on this 27th day of April, 1934.

"Q. At other times, you say, the attendant was there? A. Was there.

"Q. That is what you were relying upon? A. Yes."

The witness Frame further testified as to the action of the doors in question, as follows: "They swing both ways. As to with what force one of the doors will fly back or swing back before it closes, that will depend on the distance you open that door. These hinges have an arrangement on them that you can take the force out of the door with it, and you can also tighten them up, so they will shut with greater force, but, gradually, as they shut, when they come to the center they will ultimately stop; in other words, both barrels of the hinge work as a check, one on the other. The purpose of that check is ultimately to stop it in the center line, in the center, but you can tighten that spring up until it strikes quite a forcible blow. Q. In the condition that the doors are, what condition do they fly shut? A. If they are opened as far as they can open, they will strike about a fifty pound blow." He also testified that all of the other theater doors in Butte were equipped with handholds or bars, but it appears from the testimony that all of these doors, although they are swinging doors, only swing one way, whereas the doors in question swing in both directions.

Walter Arnold, an architect of 35 years' experience, testified as follows: "I looked around the city of Butte with an idea of determining places that had doors of similar appearance and operation as these at the American Theater; that is, in and out doors without any handholds, knobs or bars. I found them at the Butte High School, the First Baptist Church, the main entrance to the Metals Bank, the Woolworth store, the U.S. Hotel entrance, on Dakota street, the Leggat Hotel entrance, the Hennessy store storm doors, the Silver Bow Block, the Bakerite Bakery, Creamery Cafe, Green's Cigar Store, and another cigar store at 4 North Main street, a candy store on East Park street, the Moxom Cafe, and the entrance to the Butte Water Company."

The defendant at the close of plaintiff's case in chief moved for a nonsuit, which was denied, and at the close of all of the testimony moved for a directed verdict. In effect, the ground of both motions was that the plaintiff had failed to prove any negligence on the part of the defendant proximately causing the injury of which plaintiff complained. The cause was submitted to the jury and a verdict rendered in favor of plaintiff. Judgment was entered in conformity with the verdict. Motion for new trial was made and denied. The appeal is from the judgment.

The defendant specifies error upon the ruling of the court on these motions, the admission of testimony over objection, refusal of certain offered instructions, and upon the order denying its motion for new trial.

After the witness Frame had testified describing the swinging[1, 2] doors in detail, quoted verbatim supra, counsel for the plaintiff propounded to the witness the following question: "What have you to say as to whether or not the doors in the condition in which you have described them, without any handholds or checking device are reasonably safe for use by the public?" Objection was made upon the ground that the question did not relate to a subject calling for expert testimony and a conclusion to be drawn from the facts. The objection was overruled, and the witness answered: "They are not safe at all."

In the case of In re Miller's Estate, 71 Mont. 330,229 P. 851, 854, it was said: "``The theory upon which expert testimony is held competent is that there are persons whose knowledge of a science, art or trade being superior to that of the mass of mankind, qualifies them to express an opinion upon any matter pertaining thereto.' (De Sandro v. Missoula Light etc. Co.,52 Mont. 333, 338, 157 P. 641.) When, however, it can be said as a matter of law that the jurors are equally capable of forming an opinion or can draw, or be readily directed how to draw, a reasonable inference, then the matter is not the subject of expert testimony. (Coleman v. Perry, 28 Mont. 1, 7,72 P. 42; Copenhaver v. Northern Pacific Ry. Co., 42 Mont. 453,467, 113 P. 467; Westlake v. Keating Gold Min. Co.,48 Mont. 120, 136, 136 P. 38.) In other words, when the conclusions to be drawn from the facts stated are within the range of ordinary training, intelligence, and common observation, expert testimony is not admissible. (Kelley v. John R. DailyCo., 56 Mont. 63, 79, 181 P. 326; State v. Keeland,39 Mont. 506, 516, 104 P. 513; 22 C.J. 642.) ``"The necessity for opinion evidence only exists where the facts in controversy are incapable of being detailed and described so as to give the jury an intelligible understanding concerning them; but when the facts are such as can be detailed or described, and the jury are able to understand and draw a correct conclusion from them without such opinion evidence, the necessity for it does not exist."' (Cummings v. Reins Copper Co., 40 Mont. [599] 621, 107 P. 904, 912)." What was there said was approved and followed in the case of Demarais v. Johnson, 90 Mont. 366, 3 P.2d 283, 77 L.R.A. 553. In Cummings v. Reins Copper Co., supra, it was held that to permit a witness to express an opinion to the effect that a rope without a chain attachment was an unsafe appliance in connection with the operation of a mine, was error. The case ofMetz v. City of Butte, 27 Mont. 506, 71 P. 761, sustained the action of the trial court in refusing to permit a witness to testify as to whether a sidewalk in a city was reasonably safe for pedestrians.

Clearly, under the decisions to which we have referred, it was error for the trial court to permit the witness Frame to answer the question.

Passing now to the consideration of the court's ruling on the[3, 4] motion for a directed verdict: We approach consideration of this question bearing in mind the rule that the evidence must be viewed from the standpoint most favorable to the plaintiff, and every fact must be deemed proved which the evidence tends to prove, and that no case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence. (Mellon v. Kelly, 99 Mont. 10,41 P.2d 49.)

In the circumstances of this case the law imposed upon the defendant the duty of using ordinary care to have the premises safe, as well as to warn the plaintiff of any hidden or lurking dangers thereon. (Bennetts v. Silver Bow Amusement Co.,65 Mont. 340, 211 P. 336; Mellon v. Kelly, supra.) Various photographs of these doors were received in evidence and have been certified to this court as a part of the record. From an inspection of these exhibits, and the description of the doors and their method of operation as detailed in the record, it appears that they were the ordinary type of door which was more or less in common use in the city of Butte as well as elsewhere. While the record discloses that other persons were leaving the theater about the same time, it nowhere disclosed therein that plaintiff was pushed or crowded by anyone in leaving the theater.

In the Massachusetts case of Smith v. Johnson,219 Mass. 142, 106 N.E. 604, Ann. Cas. 1916D, 1234, L.R.A. 1915F, 572, where plaintiff was injured by swinging doors located at the entrance to a retail drygoods store, the court said: "We are of opinion that the record discloses no negligence on the part of the defendants. The doors, as described by the testimony and shown by the photographs, were of ordinary construction, and were substantially like those in general and common use for many years in Boston and elsewhere. There was nothing to show that they were not entirely safe when properly used by persons passing through them. If, as the plaintiff's somewhat confused testimony indicates the ordinary speed of the door was increased by another customer negligently pushing in the opposite direction, the defendants are not responsible therefor. And assuming in the plaintiff's favor that there was only the usual recoil of the door, the failure to furnish doorkeepers or attendants in no way contributed to the accident. It appears that there was no pushing or jostling by the crowd of Christmas shoppers. In short, the evidence fails to disclose the breach of any legal duty which the defendants owed to the plaintiff."

The decided cases from other jurisdictions relating to injuries suffered by persons visiting public places as the result of using swinging doors are uniform in holding that the owner of the property is not liable where the injury is sustained as the result of the sudden movement of other visitors at the public places and the use of the swinging door, as illustrated by the following decisions: Dolan v. Callender etc. Co.,26 R.I. 198, 58 A. 655, 656; Pardington v. Abraham, 93 A.D. 359,87 N.Y. Supp. 670, affirmed without opinion by the Court of Appeals of New York, 183 N.Y. 553, 76 N.E. 1102; Mangel v.Bronx Borough Bank, 241 A.D. 160, 271 N.Y. Supp. 432;Olson v. Whitthorne Swan, 203 Cal. 206, 263 P. 518, 58 A.L.R. 129.

Courts have held that where two sets of swinging doors are constructed so that when doors from each set are open, one door from each set or pair being opened in the direction of another door from the other set or pair which is opened in the direction of the first door and the two overlap when so opened, then it is a question for the jury as to whether such method of construction is negligence (Kiernan v. Manhattan Ry. Co., 27 Misc. 841,58 N Y Supp. 394; Carr v. W.T. Grant Co., 188 Minn. 216, 246 N.W. 743); but here the facts are in nowise similar to those involved in the two cases last cited.

It is argued on behalf of the plaintiff that in none of the cases was there any evidence of the want of knobs or handholds, with which we agree; nor was there any evidence in this case that swinging doors of the double-action variety are ordinarily or usually so equipped; in fact, the undisputed evidence is to the contrary. It is further argued that in none of these cases did the door swing or slam back with a fifty-pound blow. It is said that they should be equipped with proper checking devices. The witness Frame, testifying on behalf of the plaintiff, said that both barrels of the hinge work as a check one on the other. The purpose of that check is ultimately to stop it at a center line, but one can tighten that spring up until it strikes quite a forcible blow. He then testified that in the condition the doors were, if they were opened the maximum distance and let shut, they would strike about a fifty-pound blow. The record is barren of any other suggestion as to any additional checking device which might properly be used on these doors. As we understand the record, while the force of the blow might have increased the extent of plaintiff's injury, the force of the blow did not cause her injury, but the location of her hand upon the door did.

In the case of Dolan v. Callender etc. Co., supra, it was said: "Such a door, like any other door, may become dangerous when carelessly or improperly used, but the defendant was not called upon to anticipate any such use thereof. And it is perfectly evident that, by the exercise of the most ordinary care in the use thereof by the plaintiff, no injury would have been sustained by her."

On the whole record, plaintiff failed to prove any act of negligence on the part of the defendant proximately causing her injury. The court was in error in denying defendant's motion for a directed verdict.

Accordingly, the judgment is reversed and the cause remanded to the district court of Silver Bow county, with direction to enter judgment of dismissal of plaintiff's complaint on the merits.

ASSOCIATE JUSTICES STEWART and MORRIS concur.

MR. CHIEF JUSTICE SANDS and MR. JUSTICE MATTHEWS, being absent, did not hear the argument and take no part in the above decision.