The distinction between this case and Ransom v. Kreeger Store, Inc. (La.App.) 158 So. 600, is that here the water, which, it is charged, should not have been permitted to remain on the floor, was immediately adjacent to an exit of the theater. Counsel for plaintiff in their briefs recognize the distinction between such a condition near an entrance or an exit and such a condition entirely within the premises.
It is conceded that a theater owner is not an insurer of the safety of his patrons and, while it is true that, in Lonatro v. Palace Theatre Co., 5 La.App. 386, we said that the doctrine of res ipsa loquitur applies where a patron is injured in a theater, I feel quite sure that the reason which prompted the court to apply the doctrine there was that, under the particular facts, the patron could certainly have had no knowledge as to the cause of the injury. Ordinarily it is well established that the owner and operator of a theater is not the guarantor of the safety of his patrons and is not under the necessity of explaining all accidents which may occur regardless of the circumstances.
In 62 Corpus Juris, verbum, Theaters and Shows, § 80, the rule is stated as follows:
"Evidence — a. Presumptions and Burden of Proof. — (1) In General. In actions for injuries sustained by a patron of a theater or other place of public amusement, negligence of defendant is not presumed, and the burden of proof is not on defendant to show that he was not negligent, but on plaintiff to show that defendant was negligent, by a fair preponderance of evidence."
It is only where the circumstances are peculiar and the accident is caused by an instrumentality entirely under the control of defendant, or under circumstances concerning which the injured party could obviously have no knowledge, that the doctrine of res ipsa loquitur is sometimes permitted to apply. See 67 C.J. § 81, p. 879.
The facts of the Lonatro Case were most peculiar and, obviously, the patron could have had no knowledge as to how the accident had occurred, whereas here it is obvious that the accident occurred because the patron slipped on the floor and knowledge as to circumstances of that kind could as well have been obtained by the plaintiff as by the defendant since, even though the injured boy was quite young, he was accompanied by an older boy.
The fact that such an accident had never before happened may be taken into consideration in determining whether it was negligence in the operator of the theater to permit a certain amount of water to remain near the door at the exit.
In Givens v. De Soto Bldg. Co., 156 La. 377, 100 So. 534, 536, the Supreme Court said:
"The question therefore is whether it was negligence on the part of the Saenger *Page 462 Company to fail to light the floor at the point where the change of level occurred. We do not think so.
"It is shown that many thousands of persons have entered and left this theater without another person having suffered a fall. Things were therefore apparently safe.
"Now the operator of a theater is not an insurer of his patrons. He need only be free from negligence; and, granting that a prudent man must exercise some degree of foresight, nevertheless he is not required to foresee that something may happen, when long experience fails to show any such happening before, unless the circumstances are such that he should have known that the happening was likely even though it had not yet occurred.
"But such is not the case here. Moving pictures, as we have said, require some degree of darkness; nevertheless such theaters are never so dark that one may not see persons and objects around him which become quite distinct after a while spent in the semidarkness."
There was no reason to anticipate danger in the particular place in which this little boy fell. The floor was perfectly level; there was no obstruction of any kind; the evidence shows that there was a certain amount of illumination from the light located across the yard.
That the doors were left open is of no importance because, obviously, if they had been kept closed except when in use, a certain amount of water and possibly mud would have been tracked in from the outside.
I respectfully dissent.