Lasell v. Tri-States Theatre Corp.

Appellant’s assignments of error are based upon erroneous instructions and the failure to properly instruct the jury. The appellee contends that if it be conceded the trial court so erred, it was error without prejudice, since its motion to direct a verdict because the appellant had failed to establish either negligence on the part of appellee or her own freedom from contributory negligence should have been sustained. If there is merit in the appellee’s contention, it is decisive of this appeal and makes it unnecessary to pass upon the merits of the errors assigned. Some review of the record is therefore first required.

The appellant, aged sixty-four years, weighing at the time about 223 pounds, accompanied by her daughter and the latter’s daughter, having paid the required admission, entered the Des Moines Theater, operated by the appellee, about five o’clock in the afternoon of June 8, 1941, to attend a moving-picture show. Patrons, after passing through the entrance traverse the lobby, foyer, and promenade, in succession, before taking their seats in the auditorium. The auditorium is approximately one hundred feet east and west, and probably somewhat farther north and south, from its rear to the screen at the north end. The main or ground floor of the auditorium con *932 sists of four sections of seats, the two center sections having forty rows of seats and the side sections having two or three rows less. There are five aisles extending from the rear north to the screen aisle, number 1 being along the west wall and the other aisles being numbered consecutively to the aisle along the east wall. The entire floor of the auditorium extends from the stage toward the rear, south, on a gradually rising gradient or incline, until it reaches the third row of seats from the rear wall of the auditorium. From the elevation of this line, the level of the aisles gradually slopes downward toward the aisle entrances and coincides with the floor level of the promenade. But the level of the floor under the last three rows of seats in the auditorium, and between those parts of the aisles which slope southward and down, continues on a rising incline to the rear wall. As a result of this method of construction the passageway to the seats in the third row from the rear is on the same level as the aisle and there is no step-up from the aisle into this passageway. But to enter the passageway to the seats in the second row from the back there is a step-up of approximately five inches, which continues as a ramp or upward-sloping way, for a short distance into the passageway. Entrance from the aisle into the-last row at the rear of the auditorium is in like manner except that the step-up is somewhat higher.

Appellant and her daughter and granddaughter entered the auditorium at aisle 2, the second from the west wall. An usher, with a flashlight, seated them in the second row from the rear, in the section of seats on the left or west of this aisle. The granddaughter sat in the third seat from the aisle, the appellant -in the second seat from the aisle, and the daughter in the seat on the aisle and just over the step-up. None of them had any difficulty in taking her seat, and the appellant testified that she did not notice the step-up. The usher did not call their attention to the step-up. Other patrons were passing along the aisle as they came in. Patrons were entering and leaving the auditorium throughout the entertainment. The picture was shown, as is customary, in partial darkness. After they had been in the theater for about three hours, the daughter went to the rest room. She almost fell in stepping to the aisle but retained her balance. About five or ten minutes later the appellant *933 took hold of the granddaughter’s hand with her left hand and stepped toward the aisle. Not seeing the step-down because of darkness, and not knowing of its presence, and thinking there was no change in level of the floor on which she was walking, she lost her balance when her foot went to the aisle floor, and she fell forward, striking her head on the metal seat across the aisle. She had never been in this theater before.

Her petition alleged negligence thus:

“The proximate cause of the plaintiff’s injuries and damages was the negligence of the defendant in negligently permitting an uneven condition in its floor to exist, over which patrons would be likely to stumble and fall, with insufficient lighting and without warning of the danger. ’ ’

The petition was in no way attacked. The answer was a general denial.

There was uncontradicted evidence that the riser of this step and about two inches in width of its tread had been repainted with white enamel paint about -the end of April 1941. There was also evidence that it was repainted as it became soiled, darkened, or worn off, but no evidence of its being painted between April 1941 and June 8, 1941, the day of the injury. After taking her mother to the hospital, the daughter came back to the theater to get the name of the gentleman who1 had aided her mother after she fell, and to make some observations. She testified:

“The theáter was dark and then the promenade was a little lighter and the main entrance was real light. When I left to go up to the rest room I didn’t see the edge of the aisle and when you sit there awhile you forget about anything. When I went out of there, I staggered myself, I happened to catch myself. At that time I didn’t notice any aisle lights but I know there is lights there. I did not observe any whitewashing or any white paint on the edge of the floor where it joins the aisle floor. When we were first ushered into the theater the usher did not state to Mrs. LaSell, nor me, nor any of the three of us to take note of the stepoff there. No one said anything to us upon our entrance into that theater, with reference or regard to the stepoff at the point where we were ushered into our seats. ’ ’

*934 On cross-examination she testified:

“I never seen any white stuff on there. I looked afterwards but I didn’t see anything. If there was white stuff there at the time, it was awfully dirty, you couldn’t see it. The light was so bad you couldn’t see in there. I didn’t look at the step when I stumbled but I did afterwards, that night. * * * I didn’t examine it very thoroughly when I went back, but I did see there was a step there. * * * As to the carpet in front of the step, you couldn’t see the carpet. I never seen any lights at that place. The lights were scattered up and down the aisle. I don’t say there were no lights there at that time because I didn’t see any. I didn’t see the step there or I wouldn’t have stumbled myself. * * * I never thought of looking down when I was leaving. I didn’t think of an uneven floor, didn’t think there was any necessity of it.”

The appellant testified:

“When we went into the Des Moines Theater I was ushered to my seat by an usher there. He had a flashlight. It cast a light on the floor so you could see to get to -the seat. * * * Within the place where the audience watches the show the interior was quite dark, just real dim lights. * * * I got up and started to walk out, and I reached back for Darlene’s hand, and of course, looked at the floor, tried to look at it, but it was so dark you couldn’t see the floor, so I just walked out, or started to walk out. I hadn’t stepped any more than two steps, I think, until I fell just as soon as I come to the end of the seat and stepped down here,-lost my balance and went headlong into the seats on the other side of the aisle. * * * At the time I got up and walked out I did not know there was any set-off where the floor goes into the aisle. When the usher ushered me into my seat he did not tell me there was a step-off there. Neither the usher or any one told me to remember that there was a step-off there when I came out. Neither the usher or any one told me that I should watch my step as I left the theater. I did not notice that condition there when I went into the.seat. As I stepped out at the end of the seat not knowing that there was a step-down, I just walked right out like I was walking on a level floor, and *935 of course, I lost my balance and then I went right on over. The edge of the step-off urns not illuminated by a light. It was dark. I could not see where the edge of the floor left and the aisle began lower. The usher did not úse a flashlight to help me get out of there. * # * I tried to see, but it was so dark that you couldn’t see the floor there where I came out.”

On cross-examination she testified:

“An usher took us at the door and seated us. I came into the seat I was sitting over the same path I went away on. I suppose I stepped up this step when I went into the seat but I didn’t notice it. We had been out in the light when we' came into the theater. * * * I noticed some lights on the posts down the side of the theater scattered along there. When we went in I noticed little dim lights down the aisle but they weren’t light enough to light the aisle. The lights weren’t showing on the edge of the step. There ivas no light on the end of the aisle [on the end seat of the aisle] * * * and if there was it was out, because there was no light there when I walked out. There was no light on that floor, it ivas dark there. I looked down to see where I was walking, couldn’t see the floor at all. I walked out, I supposed it was all level, didn’t know there was any jumpoff. I must have walked up the step when I came into the place but I didn’t notice it; there were other people went in ahead of us. * * * I did not appreciate that the back portion of the theater was raised above the front portion, it was the first time I ivas ever in there. I didn’t look around at the fixtures, and seats, and elevation, anything of that, I ivas looking at the picture. There Avas no light lighting the aisle under the seat in which Mrs. Wakefield [daughter] was sitting, if there was a light there it Avasn’t lit, because it was totally dark, it A?as plumb dark where I stepped off. The floor part Avas all dark. There Avas no AAdiite line to be seen. I supposed I was on level floor. There was no light so that you could see white if there was any Avhite there. * * * Some of the lights on the edges of the seats show down onto the aisle and some of them are so far apart there are places in between they don’t show. There is lots of space where they don’t light.”

*936 Mr. Wessels, a coal salesman and treasurer of the city of Rock Island, Illinois, was a witness for appellant. He testified:

“My wife and I were sitting in the Des Moines Theater, Sunday, June 8, 1941, * * * in the middle section in either the rear row or second from the rear row. I was on the seat next to the aisle. * * * Mrs. LaSell fell just immediately in front of me. * * * she struck her head immediately in front of the line where I was sitting. * * * An usher was a foot or two to my left in the doorway aisle at the time. [The witness carried and dragged Mrs. LaSell to a divan in the promenade.] Mrs. LaSell fell just opposite the aisle where she came out. * * She fell in a row just opposite the row ahead of me in this other section at my left. * * * As to the condition of the interior of the theater at the time of her fall, it wasn’t light, because that would interfere with the showing of the picture. I would say it was relatively dark. * * * it seems to me, beginning'at a point about three or four rows from the rear, would think there was an elevation built up so that people sitting back here could see over the heads of the people sitting in front of them. Of course, that was graduated down there, wherever it started, the third or fourth row from, the rear. It was almost level with the aisle, and of course, tapered up in this manner. I would say that curb in the rear must have been about six inches high, I am just guessing, it tapered from nothing up to about six inches in the back. The floor upon which the seats are placed is level with the aisle at about the fourth row from the'baek, but from that place, then to the back of the theater the floor where the seats are placed rises higher than the level of the aisle. There is about a six inch curb in the vicinity of where I and Mrs. LaSell were. They had little lights that seemed to be staggered up and down the aisle, one on this row, one there and one here. * * *■ They of course were not very bright. The lights were shielded from the top to deflect the lights to the floor so they don’t interfere with anybody’s vision. * * * They weren’t bright. I would say a very small candlepower bulb in there. Perhaps don’t provide much illumination, perhaps provides nothing, I don’t know. Q. Did those lights illuminate the edge of the curb at the level of the floor where it was ele *937 vated above tbe aisle floor? A. Well perhaps the best way to answer that, after I came back from carrying Mrs. LaSell * * * I recall coming back and feeling with my foot so I would get it high enough to go into the aisle. I didn’t feel the illumination was adequate, or perhaps the pupils of my eyes' had [not] become dilated so I could see inside. I remember feeling for the curb, so I could get in and take my seat again. * # * People would come and go during the performance. * * # I would say they [aisle lights] appeared to be about the same as other theaters I have been in. * * * Either the row of seats in which Mrs. LaSell was had an aisle light or there was one on the row straight across, I don’t recall which. * * * There were lights in the aisle, whether a light right there, I wouldn’t say. * * * I -was one row back of the place from which Mrs. LaSell emerged and across the aisle. * * * I felt with my foot, I didn’t feel the visibility was so good I could just walk into my seat. ’ ’

Witnesses for the appellee testified: A balcony, about ten feet above the floor covers the three back rows in the auditorium; the distance from the rear of one row of seats to the rear of another row is thirty-two inches; there are four clusters of lights in the ceiling of the promenade; there are eight posts in the aisles along the east-and-west walls, and on each post a 40-watt light in straw-colored glass; there were two similar lights on each side of aisle 3 in the middle of the back wall; there were six lights on each side of an aisle, each about six rows of seats apart — the twelve lights being alternated on each side of the aisle; these lights were 10-watt bulbs with clear glass, placed on the aisle side of an end seat, completely covered with a metal hood, which had a grilled or barred opening at the bottom; this hooded light was placed just below the arm of the seat about two feet above the aisle floor; there was such a fixture on the aisle seat of the second row in which the appellant was sitting, and also one in the seat across the aisle; these east a light about a 40-inch arc, and would cover the white portion of the step; immediately under the end seat of this second row, just south of the step in question, and sunk in a recess of the concrete which forms the vertical plane of the riser of the step, was a frosted 15-watt bulb; across the face of the recess and *938 protecting the globe was a metal plate with a slotted grill about four inches square, the louvers or slats of which were at a diagonal pitch,, casting the rays of light downward; there was an exit light inside, above the aisle entrance; the light from the promenade would diffuse some light into the aisle about as far as the third row from the back, if the aisle entrances were open; these entrances were closed when the seats along an aisle were filled. The foregoing testimony was given by appellee’s electrician and its assistant manager. The latter was in the lobby or foyer when the appellant was injured and first saw her on the davenport in the foyer. He testified that the aisle light on the end seat of the row in which appellant was seated was burning, as was also the light down in the concrete, and another aisle light lower down the aisle but not directly across, when he went back and checked the scene of the accident. He also testified that it requires semi darkness in order to properly see a motion picture, and that you cannot have a satisfactory picture with normal illumination. No usher or anyone else testified for the appellee, respecting the above matters, excepting a theater architect; who stated that:

“Where it is necessary to have the level of the floor on which the seats were placed above that which the aisle runs on, a step between the aisle and the floor on which the seats are placed is an approved method of construction.”

On July 8, 1941, a picture of the step was taken. It was received in evidence without objection. It quite clearly shows the end seat, step, and surroundings. But the view which impressed itself on the film of the camera, and is reproduced on the photograph, is a much clearer and more definite view than was disclosed to the eyes of the appellant and her witnesses at the time of her fall. Their eyes saw it with the light which we described herein, while the eye of the camera saw it in the rays of all of the theater lights, and of the photographer’s 2,500-watt floodlight, augmented by a flashlight bulb. This photograph, Exhibit No. 1, was certified to this court.

In rebuttal, a sixteen-year-old boy, who was sitting just a few seats ahead of appellant and across the aisle, testified in *939 her behalf. He assisted in removing her from the aisle when she fell and then came back into the theater. He said:

“The picture Exhibit ‘1’ is not correct in two respects. The illumination, of course, to take the photograph is a great deal greater than lighting they have when they show a moving picture, I believe that is necessary, and the other thing, I would say the white enamel on the step here I don’t believe it showed up that plain. I didn’t see any enamel, it could have been covered up or was dark, I couldn’t see it, but I saw none there, as to the conditions of visibility when I made the observation I would say that this was rather poorly lighted, there was a light there in that vicinity and some light coming from the door into the lobby there, but it was insufficient as far as I was concerned if I were coming out of that seat. As I recall the dim light that lit the aisles did not light the top of the step. This picture Exhibit ‘1’ does not show such lights and shadows as "were there at-the time I made the observation. This picture does not show the situation as I viewed it on my eye at the time; that shows more than I saw because there is more light on that. * * * I do not recall as to where any of the lights in the aisle set. I don’t remember whether there were lights on the seat at that place. I do remember there were lights set in the concrete.”

Appellee introduced a statement signed by this witness and procured, apparently, by an investigator of its insurance carrier, but it in no way impeaches the witness nor impairs his testimony.

I. We have set out the substance of the testimony which bears upon the issues of negligence and contributory negligence, and upon the pleaded allegations of faulty construction, insufficient lighting, and lack of warning. It is our judgment that appellee’s motion to direct was rightly overruled and that all such issues and questions of fact were for the determination of the jury.

It is a well-recognized principle, needing no citation of authority in support thereof, that the appellee, in moving for a directed verdict, must be considered as admitting the truth of all evidence offered by appellant and every favorable inference fairly and reasonably dedueible therefrom.

There is a conflict in the evidence as to the existence and *940 the adequacy of the lighting, and as to the visibility of any painting on the step. The appellant and her daughter testified that it was so dark that neither the floor nor the step was seen by them. Two strangers to the appellant testified to facts supporting the testimony of appellant and her daughter respecting the absence of lighting and the nonvisibility of any painting, and also, without objection, gave their opinions as to the inadequacy of the lighting at the step and vicinity. One of them, sitting in an aisle seat across the aisle and one row back from the row in which appellant was sitting, which seat was reached by a similar step, returning to it after assisting the appellant, testified:

“I recall coming back and féeling with my foot so I would get it high enough to go into the aisle [meaning the passageway between the rows]. I didn’t feel the illumination was adequate. * * * I remember feeling for the curb, so I.could get in and take my seat again. * * * I felt with my foot, I didn’t feel the visibility was so good I could just walk into my seat. * * # I couldn’t say the aisle was lighted, as I recall it, but I don’t believe the floor level on which the seats were situated was lighted, I don’t think that is the case. I believe that is true.”

Speaking of this step, appellee’s witness, the theater architect, testified: \

“It would not be a safe method of construction for the use of patrons if there were no lights to reveal the stepolf from the floor level, of the seat to the floor level of the aisle. I think there should be lights and painted. I think you would want both of them, good practice would probably dictate that.”

The hooded aisle-seat light and the light in the concrete recess were of small candle power. The globe of the latter was frosted. The recess was covered by a grill. It was located where dust would be continuously settling while the theater was in use. Its location, a short distance removed from the step, lower than its tread and on the same vertical surface of the concrete as the riser, prevented it from casting much, if any, light on the step. The question of reasonable lighting, under the circumstances, was certainly for the jury to determine.

*941 Of a similar situation, in Vale v. Indiana County Theaters Co., 3 Cir., Pa., 120 F. 2d 495, 497, where there was a six-inch drop in the floor level of the rest room and the floor of the foyer, the court, in affirming judgments for plaintiffs (wife and husband), said:

“The defendant’s negligence lay in its failure to light the step sufficiently so that it was readily observable to invited users. That such was the defendant’s duty is indicated by the Haddon ease [Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8] where it was expressly pointed out, 293 Pa. pages 336, 337, 143 A. page 9, that ‘where such difference in elevation exists, the place should be sufficiently lighted artificially to enable users to see the step, unless lit by daylight.’ * * * Certainly, the law furnishes no standard by which the court could have determined whether the light in the room was sufficient to reveal the step to one entering therein. The trial court properly declined to base a conclusion of law upon unknown factors and assumptions. * * * The question of the defendant’s negligence was peculiarly for the jury.”

With respect to the allegation that no warning was given the appellant, the record shows without dispute that the only warning, or attempt to give warning, was such as may have been given by the lighting and the painting and the use of a flashlight by the usher in directing the appellant and her companions to their seats. No verbal notice was given to them by the usher or by anyone else at any time. Whether warning was given and whether it was sufficient was for the jury to pass upon.

Respecting the allegation of negligence in maintaining the uneven floor, or step, there is no denial other than might be in the general denial of the answer. Appellee, by evidence and by argument, admits the existence of the step, and asserts that it was necessary and was an approved method of construction. The probative, value of this testimony was greatly weakened, if not destroyed, by proof that, after appellant’s injury, under the direction and advice of the theater-architect witness who gave this testimony for appellee, the steps were removed from these two rows of seats — the last two rows on the ground floor —and ramps were substituted for the steps.

*942 One ground of appellee’s peremptory motion for a directed verdict is:

“4. The theatre is constructed and lighted in an approved manner, and in accordance with the customary method of lighting and constructing theatres of similar character and nature.”

Appellee cited Rynn v. Fox-New England Theatres, 299 Mass. 258, 12 N. E. 2d 728 (directed verdict for defendant); Givens v. De Soto Bldg. Co., 156 La. 377, 100 So. 534 (judgment for defendant on jury verdict); Suggs v. Saenger Theatres, 15 La. App. 142, 130 So. 817 (nonsuit against plaintiff); Foran v. Buffalo Palace Corp., 237 N. Y. 599, 143 N. E. 758 (nonsuit against plaintiff); Peck v. Yale Amusement Co., Mo., 195 S. W. 1033 (directed verdict for defendant). Of'these_ authorities, the appellee states:

"Appellee respectfully submits that the above cases hold as a matter of law that it was not per se faulty construction for appellee to place the seats of the auditorium or theatre at a higher level than the aisle between them as such arrangement has advantages which are obvious; that there is nothing uncommon in this form of construction * *

We call attention to other cases not cited by appellee, some of which give support to its contention that if the lighting or the elevated-seat construction of a moving-picture theater, defendant in a case of this kind, is in accordance with the customary method of lighting or constructing theaters of similar character and nature, such defendant is not negligent in either respect, as a matter of law, since such a prevailing practice, or approved method, in itself, furnishes the legal standard, test, or measure of the duty or care which such theater owner or operator owes to his invitee or patron for the latter’s safety. Such other cases are Rosston v. Sullivan, 278 Mass. 31, 179 N. E. 173; Miller v. Poli’s New England Theatres, 125 Conn. 610, 7 A. 2d 845; Falk v. Stanley Fabian Corp., 115 N. J. Law 141, 143, 178 A. 740; Bergstresser v. Minnesota Amusement Co., 68 S. D. 579, 5 N. W. 2d 49, 143 A. L. R. 53; Falso v. Poli-New England Theatres, 127 Conn. 367, 17 A. 2d 5; Osborne v. Loew’s Houston Co., Tex. Civ. App., 120 S. W. 2d 947; Johnson v. *943 Mathews-Moran Amusement Co., 164 Or. 636, 102 P. 2d 703, 705; Gunn v. Saenger-Ehrlich Enterprises, La. App., 192 So. 744.

One witness testified that the lighting in appellee’s theater was like that which he had seen in other moving-picture theaters. There was also testimony that the use of a step to reach a row of seats was approved construction. All of this testimony was admitted without objection. We do not agree with the contention of appellee that because its lighting and construction were in accord with the customary or standard practice of theaters generally in these respects, these issues of alleged negligence were issues of law for the court rather than issues of fact for the jury. The standard of custom cannot be substituted for the legal standard of reasonable or ordinary care under the circumstances. Following an approved method is merely evidentiary and is not conclusive on the question of ordinary care. The standard of care is ordinary care under the circumstances, and not what others have done under like circumstances. Habitual practice of any number, for any period of time, cannot make a negligent act an act of due care and caution. In Walgreen Texas Co. v. Shivers, Tex. Civ. App., 131 S. W. 2d 650, 657, the court quoted from French v. Southwestern Telegraph & Telephone Co., Tex. Civ. App., 162 S. W. 406, 408, as follows:

'‘ ‘ The fact that appellee and other companies had habitually and customarily used the same does not, of itself, show that they had exercised ordinary care. * * * “Evidence of such use by other persons engaged in the same kind of business is admissible upon the issues of ordinary care, but the question * * * is whether, under the facts of the particular case, there has been an absence of ordinary care. ” ’ ’ ’ [Lyon v. Bedgood, 54 Tex. Civ. App. 19, 117 S. W. 897, 900.]

The rule was tersely stated by Justice Holmes in Texas & Pac. Ry. Co. v. Behymer, 189 U. S. 468, 470, 23 S. Ct. 622, 623, 47 L. Ed. 905, 906, thus:

“What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. ’ ’

*944 In Farris v. Interstate Circuit, 5 Cir., Tex., 116 F. 2d 409, 411, it was not a question of proper lighting*, but of proper construction in a moving-picture theater. The elevated portion of the floor on which row of seats and passageway in front of them was located was raised four to six inches higher than the platform in the row ahead. Plaintiff, in passing down to the aisle, caught her heel between the raised edge of the passageway and the leg of a seat in the row ahead. Judgment for defendant notwithstanding verdict for plaintiff was reversed because unqualified so-called experts were permitted to testify that the theater was constructed according to standard and approved design, and was reasonably safe. The court said:

“If it be conceded that the theatre was constructed after a universal custom and long-followed design, it does not necessarily follow that such care was taken as reasonable prudence would require.” Citing Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 S. Ct. 932, 27 L. Ed. 605, opinion by Justice Harlan; Hellweg v. Chesapeake & Potomac Tel. Co., 71 App. D. C. 346, 110 F. 2d 546, and other cases.

The rule is aptly stated by the able court of the second circuit, speaking through Judge Learned Hand, in The T. J. Hooper, 60 F. 2d 737, 739, 740. The owners of cargoes in towed barges sued the barge owners and tug owners for the loss of the cargoes through the negligence of the defendants in not having radio receiving sets through which they would have been warned of the approaching storm. The defendants contended that it was not the general practice to carry such sets. In affirming judgments for plaintiffs, the court said:

“Is it then a final answer that the business' had not yet generally adopted receiving sets? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given..some currency to the notion ourselves. Ketterer v. Armour & Co. (C. C. A.) 247 F. 921, 931, L. R. A. 1918 D, 798; Spang Chalfant & Co. v. Dimon, etc., Corp. (C. C. A.) 57 F. (2d) 965, 967. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available *945 devices. It never .may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Citing Shandrew v. Chicago, St., M. & O. R. Co., 8 Cir., Minn., 142 F. 320, 324, 325, and other cases.

Speaking of evidence of customary conduct and standard methods, Wigmore on Evidence, 3d Ed., 488, 489, section 461, says:

"The proper method is to receive it, with an express caution that it is merely evidential and is not' to serve as a legal standard. ’ ’

In Smith v. Penn Federal Corp., 315 Pa. 20, 23, 172 A. 147, 148, an action for damages against defendant as the operator of a moving-picture show, based on inadequate lighting in view of the construction of the theater at the place of plaintiff’s fall, there was a judgment for defendant on the jury’s verdict, which was affirmed. The court said:

"There is nothing in the complaint that defendant’s witness was permitted to testify that the type of lighting in the theatre was ‘in accord with the best known practice in [his] profession in theatre lighting ’; the value of his evidence as to the use of the shaded light at the end of the second last row of seats, referred to above, was for the jury.”

In James v. Rhode Island Auditorium, 60 R. I. 405, 414, 199 A. 293, 298, there was judgment on a verdict for plaintiff, and exceptions were overruled. The court said:

"The defendant, relying upon the testimony of its expert, argues that it discharged its full duty to its invitees when it constructed its rink like other hockey rinks in various cities. We do not agree with this contention. The practice in other places and the opinion of the expert in this case are circumstances entitled to proper consideration as evidence, but they are not conclusive.” Cited in Thurman v. Ice Palace, 36 Cal. App. 2d 364, 97 P. 2d 999.

*946 Respecting similar testimony, in McCartan v. Park Butte Theater Co., 103 Mont. 342, 62 P. 2d 338, the court held that the issue as to lighting was for the jury.

The decisions of this court are fully in accord with the sound and general rule announced by the various courts above noted. We have held that what others in the same line of business have been accustomed to do in any particular is not in itself a standard of care, but is evidence only of that standard, which the jury may consider, under proper instructions, in determining whether the defendant exercised ordinary care. See Kirby v. Chicago, R. I. & P. Ry. Co., 150 Iowa 587, 590 et seq., 129 N. W. 963; Korab v. Chicago, R. I. & P. Ry. Co., 165 Iowa 1, 11, 12, 146 N. W. 765, Ann. Cas. 1916E, 637; Middleton v. City of Cedar Falls, 173 Iowa 619, 622 et seq., 153 N. W. 1040; Hall v. Chicago, R. I. & P. Ry. Co., 140 Iowa 30, 32, 116 N. W. 113; Austin v. Chicago, R. I. & P. Ry. Co., 93 Iowa 236, 61 N. W. 849.

When any method of theater lighting or construction is sought to be established by expert-opinion testimony, the probative value of such testimony is for the jury. Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N. W. 2d 646.

The appellant was rightfully upon the premises. Appellee had received its admission charge for her and she was in the theater as its invitee. It is a general rule, recognized without dissent, that an owner or occupant of buildings or premises, who directly or impliedly invites or induces others to enter therein, owes an active, affirmative duty to such persons to use reasonable, ordinary care to keep such premises in a reasonably safe condition, so as not to unreasonably or unnecessarity expose them to danger. Citation of authority sustaining this principle is not necessary, but we mention a few of our own decisions and other authorities. See Osborn v. Klaber Bros., 227 Iowa 105, 107, 287 N. W. 252; Nelson v. Smeltzer, 221 Iowa 972, 975, 269 N. W. 924; Noyes v. Des Moines Club, 178 Iowa 815, 821, 822, 160 N. W. 215; Upp v. Darner, 150 Iowa 403, 407, 130 N. W. 409, 32 L. R. A., N. S., 743, Ann. Cas. 1912D, 574; Graham v. Ochsner, 193 Iowa 1196, 1200, 188 N. W. 838; Whitman v. Chicago G. W. Ry. Co.,