MR. PRESIDING JUSTICE FEINBERG delivered the opinion of the court.
This action is for personal injuries which plaintiff alleges he sustained through the negligence of the defendant in the movie theater owned and operated by defendant. A trial with a jury resulted in a verdict for $18,000 in favor of plaintiff. Defendant's motions for a new trial and for judgment notwithstanding the verdict were overruled. Judgment was entered on the verdict, and defendant appeals.
The evidence discloses that plaintiff entered defendant's theater as a patron about 4 o'clock in the afternoon; that he proceeded in the first aisle left of the center aisle; that as he walked down the aisle the lights were off; that there were no lights on the left-hand aisle and there were no lights on in the center aisle.
Cullen, a witness for plaintiff, testified that he entered the theater on the day in question at about the
It appears from the evidence that after plaintiff had been watching the pictures on the screen for about an hour, he developed a "splitting headache," had to go to the men's washroom, and that he left his seat and proceeded up the center aisle toward the door. He said it was dark, and that there were no lights on in the center aisle; that when he reached a point near the door he stepped on something with his left foot which "felt like a sucker stick, because it was round"; that his foot rolled back, and he fell forward; that he did not see the object which caused him to fall; that the area where he fell was dark; that he fell halfway into the lobby, and his chin struck the floor; that he was taken to a doctor in the building, who found plaintiff splattered with blood; and that he treated him. X-rays, later taken, disclosed a complete fracture of the left jaw extending through the radius and another fracture on the right.
It further appears from the evidence that the jaw had to be wired; that at the time of the trial there was present a malocclusion between the upper and lower teeth as well as a shift of the jaw to the right and left on opening and closing the mouth; that the malocclusion was approximately one-quarter of an inch deviation; that there was a limitation of motion of approximately one-half inch; and that such condition, according to some of the medical testimony, was permanent.
Defendant argues that a moving picture house necessarily operates in partial darkness, otherwise there would be no picture, therefore the lack of bright illumination cannot per se constitute negligence, and relies on Rosston v. Sullivan, 278 Mass. 31; Falk v. Stanley Fabian Corp., 115 N.J.L. 141, and Beck v. Stanley Company of America, 355 Pa. 608, and similar cases. The cases cited are not applicable.
Defendant's evidence disclosed that the center aisle had lights on the end seats bordering on the aisle, beginning with the row nearest the entrance from the lobby and on each fourth row toward the front; that these lights are arm lights located on the aisle side of the seat about halfway down to the floor and equipped with 15-watt bulbs, which burn out from time to time and have to be replaced. The clear inference from this evidence is that these lights are intended to shed some light upon the floor of the aisle, even if the light is only dim. The inference is quite clear and reasonable that defendant recognized that a patron is entitled to enough light to be able to observe the floor of the aisle.
The showing in the motion for a new trial as to newly discovered evidence was to the effect that John Hudson with one John Chennault accompanied plaintiff to the theater on the day of the occurrence in question; that Hudson and Chennault assisted plaintiff after the fall; that both were intimate acquaintances of plaintiff; that upon the trial plaintiff, on cross-examination, was asked where Chennault and Hudson were then and could be found; that plaintiff testified that Chennault was in the Armed Forces in Paris, France, when plaintiff knew that he was then serving a five-year sentence
"Applications for new trial on the ground of newly discovered evidence are not looked upon with favor by courts but such applications are to be subjected to close scrutiny. The burden is on the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of due diligence."
We have examined instructions No. 4, 5 and 8 given for plaintiff, about which defendant complains, and we find no merit in defendant's criticism of these instructions. These instructions were applicable to the particular facts disclosed by the evidence.
We think defendant has had a fair trial, and the judgment of the circuit court is affirmed.
KILEY and LEWE, JJ., concur.