Lollie Flanagan, an Infant, by Charles A. Janin, Her Guardian ad Litem, Respondent, v. Nathan Goldberg and Thomas G. Baxter, Appellants

Lollie Flanagan, an Infant, by Charles A. Janin, Her Guardian ad Litem, Respondent, v. Nathan Goldberg and Thomas G. Baxter, Appellants. Second Department, March 31, 1910. Hegligence — injury to person attending theater — erroneous charge. In an action against the proprietor of a theater to recover for injuries received by a spectator who was struck by a board which fell, it is error to charge that," where the accident occurred after the plaintiff was admitted and seated, the burden was.upon the defendant to show that he was not negligent rather than upon the plaintiff to prove the contrary. Appeal by the defendants, Nathan Goldberg and another, from a judgment of the Municipal Court of the- city-of New York, borough of Queens, in favor of the plaintiff, rendered on the 17th day of November, 1909. Samuel I Goldberg, for the appellants. J. Baldwin Hand, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: Plaintiff attended a moving picture show at Rockaway Beach, and during the performance a hoard fell upon her, causing the injury for which the action is brought. Plaintiff’s evidence tends to show that the board was some ten feet long, and that it had been placed against the inside wall of the room by defendants’ servant. Defendants’ evidence is to the effect that some children, running about on the adjoining premises, Where building was in progress, removed, during the performance, a board- from the side wall of the theater, and, pushing it through the hole, caused the injury. If defendants negligently so placed the board that it fell and did the injury, they are liable. They would not be liable :for an injury caused by a board thrown into the hall, unless the facts show that they had knowledge, actual or constructive, that the boys were committing depredations, or had done so, and thereupon negligently failed to protect those invited to the entertainment. The court charged, among other things: “ In actions of this character, in fact in all actions, it is incumbent upon the plaintiff to prove by a preponderance of evidence his case. The rule is slightly different here, where in public places an injury occurs through some accident happening while there.” Defendants’ counsel excepted to this charge, and thereupon the court charged, in effect, that after the plaintiff was admitted and seated, the burden was upon the defendants tp show that defendants were not negligent, and not upon plaintiff to show that the defendants were negligent. For such error the judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event. Hirsohberg, P. J,, Burr, Rich and Carr, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.