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SEATS AND FLOORS
305
The American rule is extremely unfair to the public. It would be more in keeping with justice if the proprietor were held strictly to account for the giving way of the balcony rail, regardless of whether he knew anything about its construction, or had received notice of any defects.
There are some elements of responsibility resting upon the theatre proprietor which, because of the peculiar arrangement of the building and the methods of its use, impose a greater duty upon him than the American jurisdiction exacts.
It seems hard to understand why a common carrier, which is bound to accept everyone presenting himself as a passenger, is charged with the highest degree of care, while the proprietor of a theatre, more or less free to fill his house, may expose great numbers of the public to unusual dangers and be liable for ordinary care only.
If this rule were modified, it would do more to insure the safety of an audience than is accomplished by all the numerous statutes and ordinances that are passed every year. Weiner v. Scherer 34 comes nearer to expressing this doctrine than any of the other reported American cases.
Section 94. — Seats and floors.
While the duty of the theatre proprietor has been de
use reasonable care in the construction, maintenance and management of it, having regard to the character of the exhibitions given and the customary conduct of spectators who witness them. . . .”
34 Weiner v. Scherer (1909), 64 Misc. (N. Y.) 82; 117 N. Y. Supp. 1008. Here the rail gave way because of the surging of the crowd, causing several people to fall upon the plaintiff who was seated in the orchestra.