Julia A. Pattison, Respondent, v. The Livingston Amusement Company, Appellant

Julia A. Pattison, Respondent, v. The Livingston Amusement Company, Appellant. Second Department, April 30, 1913. Negligence — injury by fall on stairway of dimly-lighted theatre — contributory negligence — appeal — dismissal of complaint by Appellate Division. Where a patron of a theatre, knowing that there were steps leading down from the platform to the seat which she had purchased, "attempted to • descend the steps in the dark without asking for assistance or waiting I for a light to be turned on, and fell and was injured, she cannot recover, i being guilty of contributory negligence as a matter of law. Where on appeal from a j udgineñt for the plaintiff it appears that no competent evidence offered by her was rejected and she is guilty of con-' tributary negligence as a matter-of law, which issue was raised by a motion for a nonsuit, the Appellate Division will grant final judgment disrSlssEig the complaint. Hirschberg, J., dissented.' Appeal by the defendant, The.Livingston Amusement Company, from a judgment of the Supreme Court in favor of-the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day óf October, 191-2, upon the verdict of a jury for $500, and also from an order entered in said Clerk’s office on the 9th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.. James I. Cuff, for the appellant. Edward J. Flanagan, for the respondent, [MAJORITY — Per Curiam:] Per Curiam: Plaintiff has failed to show herself to be free from negligence contributing to her injury. She testified' that when she entered upon the platform at the rear of the balcony in defendant’s theatre, it was “dark,” “very.dark,”so dark that she could not see any steps. " The seats "which she "had purchased were in the fifth row from the front. There was a sharp1 conflict of evidence, upon the question of the absence of light, but as she has persuaded the jury to accept her testimony as true, she in turn must accept the consequences thereof. She had been in the theatre before, she knew that there were steps leading down from the platform to the said fifth row of seats. Notwithstanding this knowledge, and notwithstanding this darkness, to use her own words, she groped her way along. She neither asked for assistance to find her way, nor waited, as there was abundant time for her to do, until more lights had been turned on. Missing her .footing at the top of the steps, she fell and was injured. Within the authorities she was guilty of contributory negligence as matter of law, and the motion for a nonsuit should have been granted. (Rohrbacher v. Gillig, 203 N. Y. 413; Brugher v. Buchtenkirch, 167 id. 153; Piper v. New York Central & H. R. R. R. Co., 156 id. 224; Hilsenbeck v. Guhring, 131 id. 674.) There is no contention that any competent evidence offered on the part of plaintiff was not received, and since the evidence was insufficient to require the submission of the case to the jury, and this question was duly presented by a motion for the dismissal of the complaint, the judgment and order appealed' from should be reversed, and final judgment granted to defendant dismissing the complaint. (Code Civ. Proc. § 1317; Bonnette v. Molloy, 153 App. Div. 73.) Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred; Hirschberg, J., dissented. Judgment and order reversed, and final judgment granted to defendant dismissing the complaint, with costs.