On appeal from a judgment of the Supreme Court.
For the plaintiff-appellant, David Cohn and Milton Goldinger.
For the defendant-respondent, Colie & Schenck.
The opinion of the court was delivered by
DONGES, J. On March 15th, 1936, plaintiff-appellant attended a performance of a motion picture at the Garden Theatre, in Paterson, which theatre was admittedly in the possession and control of the defendant-respondent. An usher escorted him to a seat, using no light although the house was darkened. The plaintiff attempted to seat himself in the seat indicated by the usher, but the seat collapsed, throwing him to the floor and inflicting injuries for which this suit was brought.
With this factual situation presented by the plaintiff's case, the trial judge granted a motion for nonsuit, holding that the case came within the ruling in Schnatterer v. Bamberger, 81 N.J.L. 558, and that proof was necessary either of actual knowledge of a defective seat or of the existence of the defective condition for such length of time as to charge the defendant with implied knowledge of it.
We conclude that the learned trial judge fell into error in so holding. There can be no doubt that the duty imposed
upon the operator of a theatre is to use ordinary care to make the premises reasonably safe for the use to which they are to be put. Andre v. Mertens, 88 N.J.L. 626; Schellack v. Biers, 109 Id. 61; Lancaster v. Highlands, &c., Corp., 117 Id. 476. The supplying of seats is the custom in theatres and it was the duty of the defendant to use reasonable care to see that the seats were safe for use.
In 1 Thomp. Negl., P996, it was said:
"The duty assumed by the owners of places to which the public resort in large numbers is manifestly analogous to that which the law imposes on carriers of passengers. Doubtless the true theory is that such persons assume the obligation of exercising reasonable care, and that what will be a reasonable care will be a degree of care proportioned to the danger incurred and the number of persons who will be subjected to that danger. A good expression of the rule of liability, applicable to such cases, is * * * to the effect that the proprietor of such structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invited to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defects which render it unsafe is immaterial."
In a number of cases in our courts it has been held that an occurrence which is not usual and in the ordinary course of things, gives evidence of negligence which puts the defendant to his proof. Sheridan v. Foley, 58 N.J.L. 230; Tompkins v. Burlington Island Amusement Co., 102 Id. 411; Law v. Morris, 102 Id. 650; Zboyan v. City of Newark, 104 Id. 258; Feingold v. S.S. Kresge Co., 116 Id. 146; Galbraith v. Smith, 120 Id. 515; Gordon v. Weinreb, 13 N.J. Mis. R. 835.
The precise factual situation presented herein seems not to have had consideration in our appellate courts, but has been passed ...