The only question presented on this appeal is this: Was the space in the rear of the orchestra circle of the theatre a passageway within the meaning of the statute ? Under the facts, as disclosed by the evidence, I think that the trial justice was justified in his finding that on April 21, *3331902, the night of the alleged violation of the statute, the space was not a passageway.
The .safety of the public, for whose benefit the statute was enacted, is not endangered by the finding of the trial justice, nor would it, in my judgment, add to the safety of the public in an emergency, if this space should be held as a passageway. There is a direct passageway from the seats to the corridor which runs around the house. The space in the rear of the seats and between the aisles is in no sense necessary for egress or ingress.
I do not think it can be said, from the evidence in this case, that the defendant has voluntarily set apart the space where the violation of the statute is claimed to have occurred for a passageway. The evidence on behalf of the defendant is to the contrary and we would not be justified in assuming the defendant’s intention to set this space apart as a passageway simply because the plans on file in the building department show the space unoccupied by seats.
I concur in the opinion of the presiding justice that the trial justice was correct in his decision.