James v. Smith

Submitted April 16, 1928. Two questions were involved in this case, (1) was the defendant chargeable with negligence; (2) was the plaintiff guilty of contributory negligence. The negligence attributed to the defendant was that he maintained an insufficiently lighted stairway leading from a theatre, in which he conducted a moving picture exhibition, to the basement of the building, and that an employee of the defendant, who took plaintiff's ticket and admitted him to the theatre to witness the entertainment, and who appeared to be the person giving information to those coming into the building, directed the plaintiff to this stairway when the latter asked him where he could find a toilet room. The plaintiff, acting on this direction, went to the door pointed out, opened it, took one step across the threshold, and was precipitated into the cellar, thereby receiving the injuries described. The plaintiff's evidence supported the statement of claim with respect to the direction given him by the defendant's employee, the condition of the stairway, and the injury received. Three defenses were made: (1) That the plaintiff was not directed to the stairway as alleged; (2) that authority was not shown in the agent to give the instruction complained of; (3) that the defendant was guilty of contributory negligence. That the plaintiff was injured in his attempt to go down the stairway to the basement of the building is not controverted. The jury has found that the defendant's servant directed the plaintiff to the stairway as claimed by the latter, and that the servant was within the scope of his employment in so doing. The plaintiff was also acquitted of the charge of contributory negligence. The defendant asked for binding instructions, which the court refused. The only points for consideration are whether there was any evidence of authority in the defendant's representative to give the information sought for by the plaintiff, and whether the facts established make out a clear case of contributory negligence? The defendant was not present at the time when the exhibition was given. So far as appears from the testimony, his contact with the audience was through a ticket seller in the vestibule, and the employee, Stephens, who admitted patrons to the building. The latter undoubtedly had authority to give direction to arriving spectators with reference to seats in the theatre, and it was fairly a question for a jury whether the answer given by him to the plaintiff's question was within the scope of his employment. It appears in the evidence that a toilet room in the building was out of order. This was within the knowledge of the plaintiff and for that reason he inquired with respect to another place. It is perhaps a matter of general information among visitors to these places that such accommodation is afforded to patrons, and it is not an unreasonable assumption that one having control of the admission of visitors to the room had knowledge as to the whereabouts of a toilet room, and that his engagement in the theatre would imply authority to give such ordinary information with reference to the appointments of the premises as would promote the comfort of guests. It was not the duty of the court, therefore, to give binding instructions to the jury on the question of lack of authority on the part of the agent Stephens. That must be determined as a question of fact under the circumstances of the particular case as they may raise an implication of agency from the interest of the employer in promoting the welfare and comfort of those who subject themselves to the management of his place of entertainment. No other person connected with the control of the building seems to have been within reach, and it is not pretended that at the time any other person had special authority in the premises. It was the function of the jury, therefore, to pass on the questions of the responsibility of the defendant for the act of his employee.

The question of the plaintiff's contributory negligence was very properly submitted to the jury. A moving picture was in progress. The plaintiff's evidence shows that the light was dim. He opened the door to which he was directed and in taking his first step fell into what proved to be to him a pitfall. He thought he saw a platform as he made his first move, but the construction of the stairway permitted the mistaken step. Evidence as to the condition of the light and the opportunity for observing the construction of the stairway was introduced and the jury was given an opportunity to pass on the question of the plaintiff's negligence. The case of Leckstein v. Morris, 80 Pa. Super. 352, is not unlike that under consideration. See also Rutherford v. Academy of Music,87 Pa. Super. 355. The appellant's argument is not convincing in support of the position that the court should have given binding instructions for the defendant, or should have entered judgment non obstante veredicto.

The assignments are overruled and the judgment affirmed.