On Application for Rehearing. In the application for a rehearing, the defendants contend that the better rule of evidence is that testimony tending to show that great numbers of people over a long period of time went in and out of the building without any mishap is admissible to show that the defendant operator of the theatre was free from fault because by the exercise of ordinary prudence and care it could not have foreseen or anticipated that such an accident would occur. Upon a reconsideration of the record including this evidence and giving it full probative value, it is our opinion that the operator of the theatre by exercising ordinary care and foresight could have and should have anticipated that one of its patrons would step into the opening as it was adjacent to the steps where the patrons were required to walk and there was no light or any other precaution used to direct the attention of those using the stairs to the presence of the opening. Since there was not any balustrade, the only support one would have in *Page 833 using the stairway would be the backs of the seats and necessarily the party would have to be walking close to the ends of the seats where the openings in question were permitted to remain. The operator of the theatre concedes that it knew of the presence of the opening and that it could have remedied the same. Therefore, the defendant which operated the theatre was lacking in the exercise of ordinary care and prudence and guilty of negligence in causing the plaintiff's injury.
With reference to the plea of contributory negligence, we reiterate that the plaintiff as a matter of fact was not guilty of a lack of proper care and attention because the theatre operator failed to place any warning whatsoever to indicate the presence of the opening into which she stepped and a prudent person by the exercise of ordinary care would not have anticipated there was an opening between the end of the seat and the step in the very isle which the defendants had provided for the use of the patrons.
Ordinary or reasonable care and attention vary with the facts and circumstances of the case, i.e., according to the dangers and hazards involved. For instance, in this case, the fact that the theatre was in semi-darkness would require stricter care than if it were brilliantly illuminated because it is obvious that patrons going in and out of the theatre could much better see where they were walking in the light than in semi-darkness. We did not intend to nor did we change the rule that the operators of theatres are held to ordinary and *Page 834 reasonable care in protecting patrons against injuries.
Rehearing refused.