Fitzgerald v. Million Dollar Theatre, Inc.

[18]

YORK, P. J.

The instant litigation is based upon a claim for personal injuries alleged to have been suffered by appellant from a blow she received in the back of her head and neck while viewing a motion picture performance in respondent theatre. At the trial, evidence was restricted to the establishment of liability and at the close thereof, judgment was rendered in favor of the defendants, Million Dollar Theatre, Inc., and R. G. Pollack. This appeal is prosecuted from such judgment.

From the testimony of appellant it appears that during the year 1941, she went to the respondent theatre, was conducted to a seat by an usher using a flashlight and after she was seated for “about 15 or 20 minutes.. . . all of a sudden I felt some licks on my head and neck, and I felt faint and was out for some time, I don’t know just how long, and when I came to a man apologized to me, he was sorry he hit me; he didn’t see me. . . . After that ... I went in the lobby and there I walked up to the rest room and got a bath towel for my head, and the maid came over and I got a nickel from her and made a telephone call and went home.” She also testified that she was seated “in the middle section about the center on the last row” in the theatre and that after she recovered consciousness, an usherette “took me by the arm and took me upstairs. ... I was crying. I didn’t say anything only I wanted to make a telephone call. ... I think there was one person in the office. I am not sure, but the maid talked to me in the rest room. ’ ’ In answer to the question: “When you were struck did you see the person that struck you?,” appellant answered: “All I know is that something hit me and I went out, and I told you I was hysterical and was crying. ’ ’ She was then asked what was said to her after she came to by the man who apologized to her. To this question an objection made by respondents’ counsel to the effect that it was not binding on any of the respondents and was hearsay as to them, was sustained by the court.

Respondents’ objections were also sustained to the following offers of proof submitted by appellant’s counsel:

(1) “Mr. Betty: I offer to prove that the man standing behind her stated he was sorry that he kicked her; he didn’t see her; he was trying to get over the seat and had kicked her. And this was in the presence and hearing of an employee of the theatre, the usher.”