
    James Dunning, Appellant, v. Henry R. Jacobs, Respondent.
    (New York Common Pleas — General Term,
    December, 1895.)
    1. Negligence — Theatres.
    Plaintiff, while changing his seat in the gallery of a theatre, slipped uponsomething slippery, or stumbled, and fell over two adjoining rows of people and the guard rail, into the body of the bouse, and sustained serious injury. The distance from where he slipped to the guardrail was five and a half feet. Held, that the accident was caused by plaintiff’s heedlessness in not looking where he stepped, or was one which could not reasonably have been foreseen and provided against.
    2. Same.
    It is not negligence for a theatre manager to fail to provide a second guard rail for the gallery to prevent such an accident.
    - 3. Same — Slope op floor.
    A claim of negligence predicated upon the fact that the floor of the gallery sloped at an .angle of fifty-five degrees is not available where .the fact was apparent and well known to the plaintiff.
    s Motion by the plaintiff for a new trial upon exceptions ordered to be heard at the General Term in the first instance upon a dismissal of the complaint at the close of the plaintiff’s evidence.
    
      Gilbert D. Lamb, for plaintiff.
    
      Samuel J. Goldsmith, for defendant.
   Bookstaver, J.

This action is brought to recover damages for injuries resulting from an accident occurring in defend^ ant’s theatre. On the evening of May 2, 1892, the plaintiff - purchased a ticket entitling him to a seat in any unoccupied -part of the upper gallery of defendant’s Third Avenue Theatre. On first entering the gallery he seated himself in the last or fourth row of seats. Hot being able to-see well from this place, he went around to the north side. There the first two rows of seats, or benches rather, were filled with people; the third row, however, was. free or nearly so. ■ Plaintiff walked down the aisle to the third row, turned into that' row; and, had advanced some three or four feet when he stepped oii. something slippery or stumbled and fell, either sideways or partially forward, over, the two intervening rows of seats '■ filled with people and the guard rail on the parapet into the ■ body of the house, some forty feet below, sustaining severe ■ injuries. The point at which he stood immediately prior to ■ the fall, to the guard rail, was at least, five feet six inches distant, and the guard rail was'one foot'two inches above the parapet, which was two feet high. The gallery floor ’was built at an angle .of fifty-five degrees from a horizontal line.

It was also shown that, in a few places, the guard, rail was somewhat loose the day after, the accident, but was in position everywhere. Upon this state of facts the complaint was dismissed at the close of the plaintiff’s case, with' directions' that the. exceptions be heard at the General Term in the. first", instance,

To entitle a plaintiff to go to the jury in an action; of this kind, he must establish affirmatively that he was without fault, and that the defendant -was guilty of some negligence. It is clear from the evidence that the primary cause of the accident was the slipping or stumbling of the plaintiff on the floor of the third row of seats. He says: “"My foot slipped under me, for what I cannot say, but over I went and I knew no more until I found myself in Bellevue the next morning.” He further testified he did not know whether, he slipped, or ' stumbled, and then'continues: “ There was something slippery on the floor; I do-not know what tripped me; something-slippery on -the floor, I cannot say what it was ;■ * * *. I do not know what made me fall — only something slippery under my feet.” There is not a, particle of evidence that the defendant was in any way guilty of negligence which caused this slipping or stumbling. On the other hand, it was'eithér the plaintiff’s lieedlessness in not looking where he stepped, ■'. or the result of an unavoidable-accident, in neither of which cases would the defendant be liable. The result of this slip, ping or falling was to precipitate the plaintiff on .or- over the persons" sitting in-the first and.second rows and .over the guard rail’ into the orchestra. As the distance from where he ‘ « 'stood when he fell to the guard rail was five and one-half feet, it is inconceivable that he would have fallen over the parapet had the seats been empty. His falling upon the per- • sons sitting in those seats naturally caused an involuntary recoil on their part, which probably gave him the impetus over the guard rail, and surely this involuntary act on the part of the guests in the theatre cannot be charged as negligence on the part of the defendant, provided he was not responsible for the situation giving rise to the fall. ■ ■

But it is claimed on behalf of the plaintiff that the defendant was negligent in that he did not have a second guard rail on the parapet, high enough to prevent such an accident, and that the one that was there was not firm. The only proof as to the looseness of the guard rail was its condition the day after the accident happened, when several of the stanchions supporting the rail were found to be loose. But it' was not shown that they were loose before the accident at the point " where the plaintiff struck the-rail, if he struck it at all, and it is difficult to understand how this in any way contributed to the accident, as the stanchions were fastened to the floor and were all in position on the morning that some of them were * discovered to be loose. Ivor can we see why the defendant was .guilty of negligence in not having a second guard rail higher up to prevent such an accident. The guard rail, as we understand it, was ' not originally erected for the purpose of preventing such an accident, but as a provision for safety to those sitting in and passing along the front row. Although , this theatre had been used for many years previously, no such accident had ever occurred, and the- question then comes down to this, should such an accident have been reasonably foreseen and -provided against ? The rule' must be applied with reference to the situation of the property and its apparent arrangement for the conduct of the business, and in such cases the line must be drawn between suggestions and possible precautions and evidence of actual negligence such as ought reasonably to be left to a jury. Larkin v. O'Neill, 119 N. Y. 225. Of course the possibility of slipping would be apparent to any one", but that such a slip would cause a fall over the space of five and one-half feet between the step and the guard rail we think is scarcely to be apprehended.

It may be conceded ■ in this case that 'the plaintiff was not a mere licensee, but was invited to the theatre for the benefit of'the defendant. In that case' the rule of law is that the defendant must exercise reasonable care and diligence to make and keep the place to which the plaintiff was invited in a reasonably safe condition. Camp v. Wood, 76 N. Y. 92. The. defendant was not bound to. insure the plaintiff against any accident or injury whatever, but only such as a prudent man would have foreseen as a likely result of the condition of his theatre, and his duty was fulfilled when he made the place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying on the business. Big. L. C. Torts, 682; Hart v. Grennell, 122 N. Y. 371; Larkin v. O’Neill, 119 id. 221; Dubois v. City of Kingston, 102 id. 219.; Loftus v. Union Ferry Co., 84 id. 460; Heath v. Metropolitan Exhibition Co., 33 N. Y. St. Repr. 828. A second guard rail might or. might not have prevented the accident. It would certainly have materially interfered with the use. of the gallery for the purposes for which it was ' intended, preventing a view to a considerable extent of the . stage. With equal force it might have been urged that the defendant was bound to supply.strong netting in front of the parapet to catch any one who unwarily fell over the parapet that was actually there.

Plaintiff also claims that the gallery was improperly com . strueted, in that its floor was at an angle of fifty-five degrees, and a ' witness, an architect, was called on behalf of the plaintiff to prove .this fact; but he did not testify that this was a dangerous angle or greater than necessary to afford an unob- ■ strueted view of the stage, or greater than any -other theatres similarly constructed. On the other hand, he testified “in order for the theatre to be used for the purposes of it's business, the second row of the gallery must -be higher than the first, 'and so on until you come to the top of the gallery; ” and that it was safe under ordinary circumstances is confirmed by the fact that it had been used for many years without any such accident happening. Lafflin v. R. R. Co., 106 N. Y. 136. That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening, cannot, if in the course of years it does happen, furnish good grounds for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency. Hubbell v. City of Yonkers, 104 N. Y. 434, 439. .

But if the accident occurred through the defective construction of the gallery, the plaintiff was fully aware of the defect. ITe was forty years old, had been accustomed to attend the theatre for six or seven years, had been in the gallery at least half a dozen times, and once in the very part from which he fell. He, himself, says: “ There was nothing to prevent me from seeing the construction of the gallery to thé right or left "x" * * the seat and the parapet and the guard on it were the same then (speaking of a previous visit) - as on the night I was injured.” It is a familiar principle that a person having knowledge of a defect or obstruction is bound to use care, according to the circumstances, to avoid injury to himself or property. The arrangement of this gallery was just as obvious to the plaintiff as it was to the defendant. He had ample opportunity for observing it and cannot plead in his own behalf his neglect to do so.

We, therefore, think the complaint was properly dismissed, and that the' exceptions should be overruled and judgment ordered for the defendant, with costs.

Halt, Oh. J., and Bisohoff,.!., concur.

Exceptions overruled and judgment ordered for defendant, with costs.  