APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.
Messrs. Darnell, Pattee & Robertson, for Appellant.
Mr. Frank E. Thomas and Mr. Hoyt Irving, for Appellee.
[58 Ariz. 383] LOCKWOOD, C.J.
James Jeffries, a minor, called plaintiff, brought suit against Lyric Amusement Company, a corporation, called defendant, for damages as the result of an injury received through [58 Ariz. 384] the alleged negligence of defendant. The jury returned a verdict in favor of plaintiff for the sum of $3,500, which was reduced by a remittitur to $1,250 in the superior court. The case is before us on an appeal by the defendant and a cross-appeal by plaintiff from the order of the superior court requiring the remittitur as a condition to denying the motion for new trial.
The first question for our consideration on the appeal is whether the evidence sustains the judgment. This evidence may be stated as follows: Defendant owns and operates a moving picture theatre in Bisbee, Arizona. On February 11, 1939, plaintiff, who was at the time about seven years of age, accompanied his older brother Donald to the theatre. They entered the building while the lights were turned up in the manner usual for movie theatres before the showing of pictures begins. The seats on the floor of the theatre were divided into three sections, separated by aisles running from the entrance towards the stage. The boys sat down somewhere in the middle section some half dozen rows from the front. About five minutes later the picture was thrown on the screen and the house lights were dimmed in the usual manner. After about ten minutes one of the ushers requested the boys to move further up in front. They went out into the right-hand aisle, passed sown it to the front of the theatre, walked across and turned up the left-hand aisle. No usher accompanied them. Somewhere between the first and third row of seats plaintiff, who was walking a short distance ahead of his brother, fell and broke his arm, and it is for this injury, which was somewhat serious in its nature, he recovered damages.
There is nothing in the evidence introduced by plaintiff which shows just what occasioned his fall. [58 Ariz. 385] Plaintiff himself had no idea, nor did his brother who was with him. Nor is there any testimony in the record that there was any defect in the condition of the building or its fixtures which might have caused it.
After plaintiff has rested, defendant placed on the stand a boy who had attended the same performance at which plaintiff was injured, and he stated that he was sitting in the left-hand corner seat of the front row when plaintiff passed him just before the accident, and that the latter fell over the feet of the witness at the place and time when his arm was broken. This testimony was not contradicted nor impeached in any manner. He testified also that the accident occurred while the house lights were up and before the picture had started, and on this point he was contradicted by three witnesses.
At the request of the parties, after the oral testimony was in, the jury was permitted to visit the theatre where the accident occurred and enter it when all the lights were turned on so that they could walk around and see such portions of the interior of the auditorium as they saw fit, and then be seated while the house lights dimmed to the point they were usually dimmed during the projection of a picture, and sit there for five minutes while some picture was being shown and view the interior of the premises for the purpose of considering its lighting and the visibility while a picture was in progress.
Apparently, from the briefs, plaintiff abandoned any contention that there was any improper obstruction or defect maintained or caused by defendant which caused him to fall, and rested his case on the alleged negligence of plaintiff in requiring him to move from his seat while the house lights were dimmed for the projection of the picture, without providing [58 Ariz. 386] an usher with a flashlight to light his way to
his new seat. In other words, that the lighting was inadequate for him to change his seat safely without aid. It is the law that it is the duty of the proprietor of a theatre to provide a reasonably safe place for his patrons, in view of all the circumstances and conditions under which they have been invited to visit the ...