Windas v. Galston & Sutton Theatres Inc.

WOOD, J. —

While attending a performance in the Mareal Theatre in the city of Los Angeles plaintiffs were injured by the falling of a block of plaster from the ceiling of the theatre about 30 feet above them. Separate actions were commenced by plaintiffs, which were consolidated for trial with actions commenced by other parties who were injured at the same time. A jury returned verdicts in favor of plaintiffs against the corporation which was operating the theatre.

It is contended by appellant that the trial court erred in applying the doctrine of

res ipso loquitur,

concerning which the jury was given the following instruction: “When a thing which causes injury is shown to be under the management of a defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant, that the accident arose from want of proper care. And the jury is further instructed that if it should find that defendants or either of them were negligent and that said negligence was the proximate cause of injury, and that plaintiffs were free from negligence, then, in such an event, you shall render your verdict in favor of plaintiffs or either of them and against the defendants or either of them, as the case may be”. No criticism is aimed at the language of this instruction, which, though not perfect, sub

[535]

stantiaUy states the rule, but it is claimed that the doctrine has no application in a case where a patron of a theatre is injured by plaster falling from the ceiling.

That the doctrine of

res ipso loquitur

is in general applicable to cases involving falling objects is not disputed. In a number of jurisdictions the doctrine has been applied to eases of plaster falling from ceilings. Appellant relies upon

Thompson

v.

Cooles,

7 W. W. Harr. (Del.) 83 [180 Atl. 522], a case in which plaster fell from the ceiling of a pool-room upon one of the patrons, and in which it was held that the doctrine was inapplicable. On the other hand the doctrine has been held applicable in