Boutin v. Cardinal Theatre Co.

CuRRiE, J.

(dissenting). The so-called “cushion” which was missing from the theater seat in which plaintiff attempted to sit consisted of the entire portion of the seat on which patrons sat. The top and bottom surfaces of such cushion were 17 by 18 inches, and it was four inches thick. In spite of the defendant theater company’s knowledge that vandáls did on occasion remove such cushions, it made no effort of any kind to patrol its theater to protect the safety of its patrons from such a hazard.

The third question of the special verdict submitted the following inquiry to the jury:

*206 “Ought the Cardinal Theatre Company through its employees, in the exercise of ordinary care, reasonably to have known of such unsafe condition [the missing cushion] ?”

The jury answered such question “Yes.” It would seem to be a reasonable assumption that in so doing the jury concluded that if the defendant had exercised ordinary care in the patrolling of its theater, one of such employees assigned to such duty should have discovered the defect caused by the missing cushion in one of the following ways:

(1) By detecting the wrongdoer in the actual act of unscrewing the two bolts holding the cushion in place;

(2) By seeing such wrongdoer moving about the theater with the bulky object of the cushion in his possession, or in attempting to leave the theater with such object in his possession; or

(3) By observing that the seat, which was in the front row of a section of the balcony having an open space in front of the same, was without its cushion.

The three members of the court who join in this dissent are of the opinion that in reaching such a conclusion the jury was merely drawing a legitimate inference from the testimony presented. We cannot agree with the majority view that in so doing the jury was engaging in a prohibited act of speculation. ' An automobile accident case, in which the jury is permitted to make a finding upon an inference based upon the evidence, often involves the element of speculation to fully as great a degree as would be the case in upholding the jury’s answer to the third question of the verdict in the instant case. For example, the evidence discloses that a driver was operating his vehicle at a speed of 30 miles per hour in a 25 mile per hour speed zone, and the jury finds such negligence was causal with respect to a collision with another vehicle at an intersection. By such answer the jury is indulging in speculation to the extent of concluding that the driver *207 could have taken some effective action to have avoided the collision if he had been proceeding at a speed of 25 miles per hour which he was prevented from doing by going 30 miles per hour.

The case of Durning v. Hyman (1926), 286 Pa. 376 , 133 Atl. 568 , 53 A. L. R. 851, involved the injury to a patron of defendant’s moving-picture theater as a result of a portion of a seat giving way when she attempted to sit upon it. The trial court had granted a nonsuit but the Pennsylvania supreme court reversed such order and remanded the case for trial. The following portion of the opinion we believe to be pertinent to the issue of constructive notice now before us in the instant case ( 286 Pa. 380 , 133 Atl. 569 ):

“In the present case, the plaintiff entered the moving-picture house, and placed herseíf upon a seat provided for the use of patrons. It broke and caused the fall. The duty devolved upon the proprietor to show that .reasonable diligence had been used to provide safe accommodations, and that a proper inspection was made to assure their suitable condition. A clear statement of the applicable rule is found in 1 Thompson on Negligence, section 996, cited with approval in Sellmer v. Ringling, 62 Pa. Superior Ct. 410, 411 , where the claim of plaintiff-, resulting from the fall of unsupported boards in an aisle of circus seats, was held to be for the jury, in absence of proper proof by defendant that due care had been taken.

“It was said by the author referred to: ‘The duty assumed by the owners of.places to which the public resort in large numbers is manifestly analogous to that which the law imposes on carriers of passengers. Doubtless the true theory is that such persons assume the obligation of exercising reasonable care, and that what will be a reasonable care will be a degree of care proportioned to the danger incurred and the number of persons who will be subjected to that danger. A good expression of the rule of liability, applicable to such cases, is ... to the-effect that the proprietor of such structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose *208 intended, save- only as to those defects which are unseen, unknown, and undiscoverable. Such being the nature of the .obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invited to come into it; and that if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defects which render it unsafe is immaterial.’ ” (Emphasis supplied.)

As to this continuing duty of inspection on the part of a theater owner, see annotation in 21 A. L. R. (2d) 420, 429.

In the case at bar there was a continuing duty on the part of the defendant theater company to properly patrol its theater to discover the type of defect which caused plaintiff’s injury. This was especially incumbent upon it in view of past experience with missing seat bottoms. The defendant should not be permitted to upset the jury’s finding on the question of constructive notice by the claim that even if it had properly patrolled the theater it might not have discovered the defect. For the reasons stated herein we would affirm the judgment.

I am authorized to state that Mr. Chief Justice Fairchild and Mr. Justice Broadfoot concur in this dissenting opinion.