Legler v. Kennington-Saenger Theatres, Inc.

172 F.2d 982, 1949 U.S. App. LEXIS 2800

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 24, 1949
• Docket: No. 12348
• Status: Published

Opinions

McCORD, Circuit Judge.

Mary E. Legler brought this suit against Kennington-Saenger Theatres, Inc., to recover damages for personal injuries sustained as a result of alleged negligence of defendant in the operation of its Paramount Theatre, situated in the city of Jackson, Mississippi.

Defendant, in answer, pleaded the general issue and contributory negligence. A trial by jury resulted in a verdict for plaintiff in the sum of $254, and from the judgment entered thereon both parties have appealed.

The evidence reveals that plaintiff, a married woman 55 years of age, is a resident of the city of Jackson, Mississippi, where she and her husband owned and operated a tea room at the time this suit was instituted. On the evening of January 15, 1947, around 7:00 P.M., she left her place of business in company with her sister-in-law to attend a popular motion picture, then being shown at the defendant’s Paramount Theatre in Jackson. When they arrived at the theatre they purchased tickets for the performance, after which they entered the outer lobby or foyer of the theatre to join a dense crowd which had gathered to wait for seats. There were two entrances from this outer lobby or foyer into the main auditorium of the theatre, and as seats became available, patrons were invited or directed to proceed into the inner auditorium through one of these entrances. After plaintiff and her sister-in-law had stood waiting with the crowd in the outer lobby for some time, one of the theatre ushers or attendants directed the crowd in which they were standing to move towards an entrance to the auditorium on the opposite side of the lobby, and the crowd, including plaintiff and her sister-in-law, moved in that direction. Plaintiff testified that this outer lobby was so packed with people, and the crowd was so thick that she could not see the floor,¹ and that as she moved along with the crowd as the theatre attendant directed, she stumbled and fell over a heavy stone urn, as a result of which she sustained a violent fall and suffered painful injuries.

Defendant offered little testimony in direct contradiction of plaintiff’s version of the incident and her resulting injury, its witnesses merely disclaiming all knowledge of the occurrence, and any responsibility therefor. The manager of the theatre testified that urns similar to the one over which plaintiff fell were placed in convenient and easily accessible locations along the route of travel for patrons entering the theatre; that because of the fire hazard no smoking in the theatre was allowed, and the urns were so placed that patrons could dispose of lighted cigarettes in them before entering the auditorium; that it was the general custom of theatres to maintain such urns at their entrance ways for the disposal of cigarettes; that no person had ever fallen over one of the urns before, and that the urns were very noticeable and plaintiff knew or should have known of their presence.

Although theatre owners are not insurers of the safety of their patrons, they nevertheless owe them the duty of exercising reasonable care to maintain the premises in a safe condition, to warn them of hidden dangers, and to shield them from harm and injuries which, under the circumstances, might reasonably be anticipated. Durning v. Hyman, 53 A.L.R. 856; 62 C.J. Section 57, p. 870; cf. Louisiana Oil Corporation v. Davis, 172 Miss. 126, 158 So. 792. Here, the jury was warranted in finding defendant negligent in permitting the outer lobby of the theatre to become so densely crowded as to cut' off a .view of the urns and the floor, and that defendant should reasonably have foreseen that someone might fall over the urns unless warned of their presence. In view of the undisputed evidence as to the congested condition which obtained at the time and scene of the injury, and notwithstanding her view was obstructed by the crowd, plaintiff had the right to assume that the path she was invited or directed to follow was clear of obstructions, and that she could move in the crowd with safety.

There was no substantial evidence tending to show that the • appellant was guilty of contributory negligence and, due to the gross inadequacy of the verdict, it was not only error, but prejudicial error, to submit that issue to the jury. The sole issue as to liability was whether or not the appellee was guilty of negligence that directly and proximately caused the injury. We are mindful of our decisions to the effect that, ordinarily, federal appellate courts will not inquire into the amount of the verdict to determine whether the award is excessive or inadequate.' State Farm Mutual Automobile Ins. Co. v. Doughty, 5 Cir., 149 F.2d 812; Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627; Southern Ry. Co. v. Montgomery, 5 Cir., 46 F.2d 990. Moreover, we recognize the general rule that the granting or refusing of a new trial is a matter resting in the sound discretion of the trial court, which is not subject to review. Swift & Co. v. Ellinor, 5 Cir., 101 F.2d 131; Sanders v. Leech, 5 Cir., 158 F.2d 486. But the rule does not apply in this case where it is manifest that the inadequacy of the verdict was the result of prejudicial error on the part of the court in submitting to the jury the issue of contributory negligence. Cf. Pugh v. Bluff City Excursion Co., 6 Cir., 177 F. 399. The jury found that the plaintiff was entitled to recover and, if she was, it seems absurd to us that she was awarded only nominal damages. See Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; Stetson v. Stindt, 3 Cir., 279 F. 209, 23 A.L.R. 302; United Press Ass’n v. National Newspapers Ass’n, 10 Cir., 254 F. 284; Cf. Woodward v. Atlantic Coast Line R. R. Co., 5 Cir., 57 F.2d 1019.

There is no merit in the appellee’s contention that the verdict of $254 adequately measured to the damages proved. The personal injuries sustained by her, as shown by the undisputed evidence, were serious and to some degree permanent. The damages awarded were barely one-eighth of the actual monetary loss shown, exclusive of pain and suffering, and probably less than the costs of this litigation. Manifestly, the jury cast aside the undisputed evidence as to the extent of appellant’s injuries, and limited her to a mere nominal recovery. The error of the court in submitting to the jury the issue of contributory negligence, while palpably prejudicial, could not have reduced the verdict to such an inadequate sum without bias, prejudice, or passion on the part of the jury also affecting the result. Cf. Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487, 488, wherein the court said:

“ * * * Regardless of the degrees of negligence properly attributable to the respective parties, we have no hesitancy in declaring the verdict to be so grossly inadequate as to evince prejudice; and if not the result of prejudice, it is due to an inadequate estimate of the total injuries suffered, or to an unjust appraisal of the degree to which the plaintiff’s negligence, if any, contributed to such injuries. * * * ” See, also, Dixon v. Breland, 192 Miss. 335, 6 So.2d 122, where there was no evidence that plaintiff was negligent.

The judgment appealed from is reversed on direct appeal and affirmed on cross-appeal; and the cause is remanded for further proceedings notc inconsistent with the views as herein expressed.

Reversed and remanded.

1 Q. “You stated that you could not see the object over which you l'cll on that occasion: Why could you not see it?” A. “Because of the crowd.”

Q. “How close were the people together in the lobby?” A. “One just standing up against the other, just like crowds are when they are just standing up.”

Q. “Were they shoulder to shoulder, practically?” A. “Yes.”

Q. “Was there, or did you see, either before or after the accident, any employee of the Theatre, or attendant, standing near the object over which you fell, warning people of the danger of falling over that object?” A. “There was not.”