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Action for damages. Before Judge Pharr. Fulton Superior Court. July 5, 1955.
The plaintiff's petition in this action for damages shows on its face that her fall from a theatre balcony was the result of lack of ordinary care for her own safety in failing to ascertain whether there was a guardrail on top of the balcony bannister, rather than negligence on the part of the defendants as owners and operators of the theatre. The trial court did not err in sustaining the demurrers and dismissing the petition.
Margaret Joyce Reynolds, by next friend, hereinafter called the plaintiff, brought suit against the Rialto Theatre, Mion & Murray Company, and Mion & Murray, Inc., as the operators of a moving picture theatre,in the City of Atlanta, and against Richardson Realty Company as the owner of the building in which the said theatre was then operated. The petition was twice amended, the last amendment striking the name of the next friend, since the plaintiff had attained majority.
Separate demurrers were filed by Mion & Murray Company, Mion & Murray, Inc., and Richardson Realty Company, each of which Was renewed after the filing of the plaintiff's first amendment. The court sustained the general demurrer of each of said demurring defendants and dismissed the petition. The bill of exceptions assigns error upon this ruling in respect to each of said defendants, contending the demurrers should have been overruled and the case allowed to go before a jury as to each defendant. The petition as amended alleges that the Richardson Realty Company owns the building at the southwest corner of Forsyth and Luckie Streets in the City of Atlanta, in Which the other defendants on November 19, 1949, operated a moving picture theatre, the building having been constructed by this defendant and leased by it for such purposes; that patrons are accommodated in seats on the main floor and on the balcony floor; that the seats on the balcony are arranged in tiers, each row of seats being elevated above the row to its front as the rows extend toward the rear. There are three sections of seats in the balcony, a central section, a section to the right, and a section to the left of the central section, an aisle being arranged between the central section and that section to the right of the central section, and another aisle being arranged between the central section of seats and that section of seats to the left of it; that the first row of seats in the balcony was at the time in question fastened to the floor of the balcony; that these seats in the front row were 15 inches above the balcony floor; that 11 inches from the seats on the front row was a solid wooden bannister 26 inches high; that the balcony was located about 15 feet above the main floor, and there was no rail on the top of the wooden bannister, patrons in the theatre being protected from falling to the main floor by said 26-inch bannister, except that at the time in question, in front of each of the said two aisles in the balcony there was a brass railing affixed to the bannister about 8 inches above its top; that the bannister was unprotected by any railing of any kind, except at the front of the said two aisles.
It is alleged further that at the time in question, when patrons entered the balcony and walked down the aisles, they received and retained an optical illusion that the brass railings in front of the aisles on the top of the bannister extended the length of the bannister; this on account of the exhibition of the pictures in semi-darkness, the flashing and playing of the lights on the screen and the lights and shades in the balcony; that when on the occasion in question the petitioner entered the balcony and walked down the aisle and took her seat in the front row of the seats in the section to the left of the aisle, she likewise received such impression, or optical illusion, by reason of these factors, and retained the same throughout her stay in the balcony; that on November 19, 1949, at about 5:45 p. m., the petitioner purchased a ticket entitling her to view the motion picture from the balcony, and she walked down the aisle situated to the left of the central section in the balcony, and took a seat in that section of seats to the left of said aisle and on the front row of seats; her seat being about the fourth seat from the aisle in the front row, that the theatre was very warm and overheated, so that the petitioner and other patrons became warm and drowsy; that after viewing the motion picture, at about 9:15 p. m., the petitioner arose from her seat to leave the semi-dark theatre, and finding it necessary to support herself on account of being affected by the excessive heat in the theatre, reached with her hand toward said bannister to support herself, and by reason of the absence of any railing on the top of the bannister in front of the first row of seats, she fell forward and was thrown from the balcony to the first section of seats on the main floor below, sustaining the serious injuries detailed in the petition.
It was alleged that Richardson Realty Company constructed the building for theatre purposes, including the bannister and tie brass railing; and that the seats in the balcony, including the first row of seats where the petitioner sat, were placed, arranged and maintained by the other defendants.
There are detailed allegations of negligence as to all defendants, which allegations are substantially the same as to each defendant. Acts of negligence are set out in substance as to the low height of the bannister, the absence of a guardrail, the balcony arrangement causing the plaintiff to sustain an optical illusion that the rail extended the full length of the balcony, excessive heat, and failure to warn plaintiff that the front row of seats was unsafe.
This action is primarily based on the theory that the defendants were negligent in that they built and maintained the theatre in such manner that as a result of their lack of ordinary care the plaintiff sustained an optical illusion of a rail which was not in fact in existence, and that her fall was occasioned by her reaching for this rail and not finding it. Her case must necessarily stand or fall with this allegation of negligence. The bannister was 26 inches high, higher than the knees of an average person, and 11 inches higher than the seat in which the plaintiff was sitting. She does not allege that she could not see the bannister or determine its height, but she does allege that she thought there was a railing over it. Accordingly, it is obvious that the plaintiff could have supported herself, in traversing the distance of the width of 3 seats separating her from the aisle, either by supporting herself against the bannister or against the seats themselves, but that instead of doing this she leaned over and above the bannister, reaching out to steady herself where she expected a guardrail to be, and thus lost her balance and fell.
The deficiency in this petition is that nowhere are any facts alleged sufficient to put the defendants on notice that a person in the plaintiff's position would think there was a guardrail over the bannister, and that in the absence of such allegations the belief that there was such a guardrail was negligence on the part of the plaintiff not in any way initiated by the defendants, so that her falling over the bannister was the result of lack of ordinary care for her own safety such as to preclude her recovery.
Henry Grady Hotel Co., 42 Ga. App. 347 (156 S. E. 275). It was not the height of the bannister, but the-plaintiff's erroneous concept of its character, which caused her to become overbalanced.
No negligence is alleged against the defendants as to the heating of the building. The temperature of the room is not stated. It might have been too warm for the plaintiff and at the same time too cold for other patrons. It might have been no warmer than necessary to keep the plaintiff comfortable while sitting quietly for a 3-hour period, and at the same time be warm enough to lead to drowsiness.
This case is controlled, as to plaintiff's failure to exercise ordinary care for her own safety, by the legal principles stated in Delay v. Rich's, Inc., 86 Ga. App. 30 (70 S. E. 2d 546); Nabors v. Atlanta Biltmore Corp., 77 Ga. App. 730 (49 S. E. 688); Ga. Power Co. v. Maxwell, 52 Ga. App. 430 (3) (183 S. E. 654); Avary v. Anderson, 31 Ga. App. 402 (120 S. E. 683); Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 (103 S. E. 433); Holman v. American Automobile Ins. Co., 201 Ga. 454 (39 S. E. 2d 850); Ford v. S. A. Lynch Corp., 79 Ga. App. 481 (54 S. E. 2d 320); Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 S. E. 2d 680); Conaway v. McCrory Stores Corp., 82 Ga. App. 97, 101 (60 S. E. 2d 631); McMullan v. Kroger Co., 84 Ga. App. 195 (65 S. E. 2d 420); Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 S. E. 354); Moore v. Kroger Co., 87 Ga. App. 581 (74 S. E. 2d 481); Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Lee v. Malone, 55 Ga. App. 821 (191 S. E. 494); Srochi v. Hightower, 57 Ga. App. 322 (195 S. E. 323), and like cases.
The trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Hoke Smith, A. C. Latimer, Ed S. Savell, contra.
Rache Bell, Durwood T. Pye, for plaintiff in error.
Saturday May 23 03:10 EDT

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