WOMAN INJURED IN A PICTURE THEATER.

Court of Appeals for Cuyahoga County.

#### Elizabeth Fox v. The Bronx Amusement Co.*

Decided, June 17, 1918.

*Negligence*— Failure *to State Cause of Action to Jury*— Not *Ground for Dismissal*— Where *the Facts Recited Warrant Application of the Doctrine of Res Ipsa Loquitur*— Specific *Grounds of Negligence Not Required in Such a Case.*

Where a woman after purchasing a ticket enters a motion picture theater during a performance and-takes' one of the seats provided for patrons, and during the performance the seat upon which she is sitting gives way, causing her to fall upon the floor and to suffer a miscarriage, the doctrine of *res ipsa loquitur*applies; and in an action for damages resulting it is error, after counsel for plaintiff has stated the case to the jury, to grant a motion to dismiss on the grcuund that the said statement did not embody a cause of action against the defendant.

*Henderson, Wickham*cfe *Maiden,*for plaintiff in error.

*Eerruish, Eerruish, Hartshorn & Spooner,*contra.

*

 Motion to certify record overruled by the Supreme Court on November 19, 1918.

Lawrence, J.

This case is here on error to the court of common,pleas, and is an action brought by plaintiff in error, who was plaintiff below, against defendant in error, to recover damages for injuries which she claims have been sustained by her by reason of the negligence of defendant.

The plaintiff in her petition alleged that on the 28th' day of October, 1916, that the defendant company owned . and operated a theatre, known as the Jewel Theatre, located on St. Clair avenue, Cleveland, Ohio, in which theatre public exhibitions were had and admission charged' therefor; that on that day she purchased a ticket and entered said theatre; that *274she was shown to or took a seat that defendant had provided among others for the nse and occupancy of its patrons; that shortly after she had occupied said seat, the bottom part of it broke, throwing her to the floor and injuring her in certain particulars specified therein, and alleging that said accident was solely and proximately caused by the defendant’s negligence and specifying the particulars thereof.

The defendant by* answer denied all the allegations of the petition, except that it is an Ohio corporation; that on the day of the alleged accident it operated the Jewel Theatre and charged admission; that plaintiff was a patron at said theatre and had entered it for the purpose of viewing the picture exhibited; and that it provided all of the seats'that were in said theatre at said time.

After the empannelling of and statement of plaintiff’s case to the jury, the defendant made a motion to' dismiss the petition for the reason that plaintiff did not state a cause of action against the defendant. This motion was sustained, plaintiff’s petition dismissed and exception noted by the plaintiff. Motion for new trial was overruled, and error is now prosecuted in this court to reverse the judgment of the court below.

The opening statement of the case to the jury is as follows:

> “If Your Honor please, and gentlemen of the jury, the facts in this case are brief so far as a statement of them is concerned.

> “Along about the latter part of October, possibly along about the 27th or 28th, Mrs. Fox, the plaintiff,' with her husband, who are living in Cleveland, and were at that time living in Cleveland near the Jewel theatre on St. Clair street, near 118th street, went to see the pictures in the theatre on that night; bought tickets, paid their admission, whatever it was, five cents possibly, and took seats in the theatre. Mrs. Fox at that time was pregnant with child, probably three months, and during the performance, and not very long after they had taken seats, the bottom of the seat fell almost completely out, letting her fall to the floor and upon her knee, which was partly under the seat. One side of the bottom of the seat broke away from the fastenings; the other side was held up partially by an iron or steel brace, so the bottom of the seat did not fall completely down, one end was stuck up, but she fell clear down to the floor on her knee. She stayed thereuntil almost completely *275recovered, and then she was taken out by Mr. Fox. On the way out they spoke to one, who appeared to be in charge of the theatre, whom we will prove to be Mr. Kalafat. She was taken home, and in two or three days after that began to feel the effects so far as her pregnancy was concerned, having pains m her batík and began meanstrating, and was taken care - of as well as her husband could take care of her. She-had relatives in Youngstown, and was taken there, and was attended by a doctor in Youngstown, who is here and will tell you the exact extent of her injuries. She lost the child, with which she was pregnant at«the time she fell; and she has now, in her left leg, what is known to the medical profession as phlebitis of' the blood vessels, that is a clot that is formed there, and she now has to wear a rubber bandage, and is under almost constant pain, especially when she walks, and it is, as the doctor will testify, a permant injury.

> “We claim that under her contract of admission to the theatre it was the duty of this defendant company to furnish her with a proper seat to see the exhibition which she paid to see; and that these injuries are directly and only caused by their failure to furnish her a proper seat; and that her injuries, through that, will go with her as long as she lives; and in addition the loss of the child, to which in all probability she would have given birth.

> “Upon these facts, if we prove them, we will ask damages at your hand in an amount which will fairly compensate her for the injuries she sustained by reason of the negligence of this company in that respect.”

It will be seen that the sole question presented for our determination is, does the foregoing statement to the jury state a cause of .action against the defendant ?

Plaintiff had alleged in her petition specific grounds of negligence; however, such were not included in the statement to the jury. In the view we take of the ease it was unnecessary to either allege or state the specific grounds of negligence causing the injury. This theatre was under the management of the defendant, and in the ordinary course of things such accidents do not happen if proper care is used. The plaintiff was lawfully in this theatre, had an implied invitation not only to enter the theatre but to occupy a seat provided by the management thereof, and she had a right to rely upon the safe *276condition of the seat provided for her, and the breaking of the seat itself affords reasonable evidence, in the absence' of explanation by the defendant, that the accident arose from want of care.

Without further comment, this court is unanimous in - the view that the doctrine or principle of *res ipsa loquitur*should apply to the ease under consideration.

For error in dismissing plaintiff’s petition, the judgment of the court of common pleas is reversed and the case remanded for further proceedings.

Grant, J., and Dunlap, J., concur.