Haun v. Tally

This appeal is taken by defendant Tally from an adverse judgment and from an order made denying his motion for a new trial.

The action was one for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendants. Tally was the owner of a theater; Darnell was his employee. On a certain day in the year 1914, Darnell, having received instructions from his employer so to do, procured and installed in one of the ventilating apertures of the theater an electrically propelled fan. On the ninth day of April of the same year plaintiff, after paying the required price of admission, was occupying a seat in the theater for the purpose of enjoying the entertainment. While he was so occupied the metal fan hereinbefore referred to became detached from the connecting motor and fell, striking the head of the plaintiff and inflicting quite a serious injury, compensation for which was assessed by the jury in this action at the sum of three thousand five hundred dollars. The points upon which appellant Tally relies are few and are succinctly stated in the opening brief of his counsel. They relate wholly to the matter of giving and the refusal to give certain instructions to the jury. It will be necessary to preface a consideration of the contentions urged against the judgment with a statement as to some portions of the allegations of the complaint and the whole charge as given by the court to the jury. That portion of the complaint wherein the particular negligence of the appellant was referred to is as follows: "On information and belief plaintiff alleges that the defendants, as a part of the furnishings and fixtures of the said theater, constructed, operated, installed, and maintained for the convenience and comfort of the patrons of the said defendant Tally, a two ventilating fan, alternating currents, of six blades. That said defendants did not exercise due care in the construction, operation, installation, and maintenance of the said fan, but constructed, operated, installed, and maintained the same in a careless and negligent manner, and in particular that the said fan was so constructed and installed, operated, and maintained that the same became loosened and did fall upon the patrons of said defendant Tally, and in particular on this plaintiff; that the said fan was so maintained, installed, and operated that the pressure of the running and operating the same caused the said fan *Page 587 to pull away from the motor and its bearings, thereby causing the said fan to fall from its said bearings on said ninth day of April, 1914, striking and injuring the plaintiff."

The court instructed the jury generally that the burden of proving negligence in the case was upon the party alleging that negligence, and that unless the jury could find that the plaintiff had established negligence by a preponderance of the evidence the verdict should be for the defendants; it instructed the jury as to the particular negligence alleged and relied upon by the plaintiff, in the terms of that paragraph of the complaint from which we have already quoted. This instruction followed: "With relation to the operation, installation, and maintenance of the fan, the court instructs you it was the duty of the defendants to exercise ordinary care in the erection and installation of this appliance in the theater, and that that ordinary care is to be measured with relation, so far as this case is concerned, with relation to the effect upon the patrons of the theater. If, therefore, you find that the fan in question fell on April 9, 1914, and injured the plaintiff while he was a patron in the theater, it will be for you to determine whether or not such fall was the result of its negligent installation, operation, or maintenance. If you find that the fall was due to such maintenance, operation, or installation having been made in a negligent manner, your verdict in this case will be in favor of the plaintiff for such amount as you find from the evidence and under the instructions of the court he has suffered in the way of damages by reason of such negligence of the defendants, if you find they are negligent. The court further instructs you, gentlemen, in regard to the matter of negligence, that when a thing which causes an injury is shown to be under the management of the defendants and the accident is such as in the ordinary course of things does not happen if those who have the management, with proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care. To apply that doctrine to the case in question, if you find that the falling of the fan in question was such a thing as does not ordinarily happen if those who have the management thereof use proper care in the management and operation thereof, it affords prima facie evidence of negligence and would justify a verdict in favor of the plaintiff unless the evidence in the case negatives that *Page 588 prima facie presumption, and establishes to your satisfaction that it was not the result of the negligence of the defendants."