On appeal from the Second District Court of Jersey City.
For the appellant, Edward Griffin.
For the respondent, Armstrong & Mullen.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
LLOYD, J. Plaintiff below brought suit against the operator of a moving picture theatre to recover damages for injuries received in a fall through being pushed down by other patrons of the theatre. She obtained judgment in the District Court and the defendant appeals, contending that there should have been a nonsuit or direction of a verdict in its favor.
The facts as exhibited by the plaintiff's proofs were that at the time the plaintiff and her granddaughter entered the theatre the seats were filled and they remained standing in the lobby for sometime. At the conclusion of a showing of the picture the ropes were withdrawn and they started down the aisle. When half way down the plaintiff was pushed by some person or persons behind her and she fell. It was testified that there was a large crowd; that there might have been one hundred people in the lobby when the ropes were withdrawn. Plaintiff, a woman seventy-three years of age, answered a question that it was done (that is, her being knocked down) by so many people behind that she could not tell who did it, and that there were no ushers in the aisle. The granddaughter who was with her said there was a terrible crowd; that she and her grandmother were the first ones, and after the show was over and those who wanted to go out were gone, the ropes were let down and the people started to push through; that she and her grandmother were walking down the aisle, then the rush came, people were not exactly running but were hurrying to get seats before the second show started. In the rush they knocked her grandmother down. She afterwards qualified this by saying that they were walking fast; she and the plaintiff doing the same thing. The plaintiff likewise on cross-examination said that they walked down and that others walked down behind them and suddenly she felt a push. The contention seems to be that because the crowd was let in and no one thereafter controlled them in the aisle, this constituted negligence.
Our consideration of these proofs leads us to the conclusion that they fail to exhibit a cause of action against the appellant. There are undoubtedly cases in which injurious consequences of failure to control crowds may create liability. Such are Hansen v. North Jersey Street Railway Co., 64 N.J.L. 686; Sandler v. Hudson and Manhattan Railroad Co., 8 N.J. Mis. R. 537; 151 A. 99, and Egner v. Hudson and Manhattan Railroad Co., 109 N.J.L. 367; 162 A. 554, but in all of these cases, which were between passengers and carriers where even a higher degree of care
than here exists applied, emphasis is laid not on a duty to avoid over-crowding, but on a duty to use care to avoid the dangers likely to arise therefrom, at entrances and exits of the carrier's cars. No case has been brought to our attention where permitting over-crowding, whether in places of amusement or elsewhere, has been held to constitute negligence. Indeed, the cases cited by respondent respecting theatre shows all seem to recognize this, and in none of them is injury from a merely crowded condition of the theatre held to be actionable. In Dondero v. Tenant Moving Picture Co., 94 N.J.L. 483, it was a pitfall in a darkened passageway. In Heine v. Acme Theatre Co., 5 N.J. Mis. R. 164; affirmed, 104 N.J.L. 171, the lights were turned off and the plaintiff fell over a hidden platform. In Andre v. Merten, 88 Id. 626, it was also a question of failure to provide light in a dangerous situation.
It is of course the law that patrons of places of amusement as well as of the various means of transportation assume the risk of the dangers normally attendant thereon. These are accepted as incident to the enjoyment of or acceptance of the service which they afford.
We likewise cannot close our eyes to the fact of common knowledge that motion picture theatres repeat the same picture at intervals during the day and evening and that as each exhibition is concluded many persons leave the building and many others who have been held back take their places. Incident thereto is ...