in the rear of that theater did you find people stumbling across that place?'

66

(2) The court erred in denying plaintiff's motion for a new trial."

The first assignment of error approaches a question which has been the subject of serious consideration and somewhat conflicting opinions in this court as well as in other jurisdictions. The two cases of Early v. Railway Co., 66 Mich. 349 (33 N. W. 813), and Langworthy v. Green Township, 88 Mich. 207 (50 N. W. 130), are cited by counsel for defendant as holding that proof of previous accidents occurring at the same place as the one giving rise to the litigation is not permissible. In the Early Case it was said:

"The court committed no error in excluding other and previous accidents occurring at the same place."

And in the Langworthy Case:

"A witness was asked by defendant's counsel if he had ever heard or known of any one being injured on that obstruction before this, but the court properly excluded the testimony. Hodges v. Bearse, 129 Ill. 87 (21 N. E. 613)."

It would seem in this case that the interrogator was seeking to prove a negative. To the extent these authorities tend to substantiate the rule defendant contends for, they must be regarded as somewhat out of tune with others which came before and after them. See Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); James v. Mining Co., 55 Mich. 335 (21 N. W 361); Smith v. Sherwood Township, 62 Mich. 159 (28 N. W. 806); Thorsen v. Babcock, 68 Mich. 523 (36 N. W. 723); Lombar v. Village of East Tawas, 86 Mich. 14 (48 N. W. 947); Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094); Corcoran v. City of Detroit, 95 Mich. 84 (54 N. W. 692); Alberts v. Village of Vernon, 96 Mich. 549 (55 N. W. 1022).

In Gregory v. Railway, 138 Mich. 368 (101 N. W.

546), it was held that "such testimony is only admissible to show notice and knowledge of the defects," but this was overruled in Woodworth v. Railway, 153 Mich. 108 (116 N. W. 549), and it now stands as the law in this State that evidence of prior similar accidents in the same place, the conditions being shown to remain unchanged, is admissible to prove both notice of the defect and negligence. It is not permissible, however, to prove that others stumbled in the same place after the accident. McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955).

The question asked in the case at bar, exclusion of an answer to which is alleged as error, assumed facts not proven, and was so framed as to include accidents occurring both before and after the one in issue. It called for incompetent as well as competent testimony, and the record contains no intimation of what the answer would have been. No proposal or offer was made to show that other persons did in fact stumble across that place prior to the time plaintiff fell. The question asked did not properly present that issue. It was objectionable in substance in part and in form as a whole. The objection was properly sustained.

The reasons upon which plaintiff's motion for a new trial was made are stated as follows:

"(1) Because the said verdict was contrary to the weight of evidence adduced at the trial of said cause.

(2) Because the jury erred in its finding as to the special question submitted to it, at the request of the defendant.

"(3) Because the testimony of the said defendant, and the witnesses produced by him, so far as the same pertained to the time when the railing down the steps leading from the aisle of said theatre had been placed in position, was erroneous and false.

"(4) Because the testimony of said defendant and the witnesses sworn in his behalf as to the manner of keeping a record of the business of said defendant prior to and at the time of and subsequent to the accident, which was the

basis of the plaintiff's cause of action, was erroneous and false.

"(5) That the testimony of said defendant was false and erroneous in the following answers given to the following questions.'

This is followed by several pages of questions and answers extracted from the testimony of defendant and one of his witnesses, all of which is alleged to be "false and

The grounds of negligence alleged in plaintiff's declaration are, briefly stated, failure to equip the stairway with suitable railings on each side, failure to provide them with sufficient lights to enable plaintiff to see where the stairs and landings began and ended, and failure, either by signs and proper notices or by attendants, to inform and advise her of the conditions and dangers.

On the trial of the case plaintiff was sworn and testified to the time and circumstances of her attending the theater and falling when making her exit. After describing the stairway and manner in which it was arranged and equipped, her testimony, appearing in the printed record in narrative form, is as follows:

"At the time I met with the accident, there was no railing down this curved step. I had entered the theater safely and witnessed the performance, and was leaving while an act was in progress. The Bijou is one of the socalled continuous moving picture theaters. It was dark in the theater when I started to leave, and I felt my way down the first flight of three steps. I saw where the other flight started to lead down stairs and walked toward it. I had been in this theater but once before, some months previous, and did not know about the curved step, and, being unable to see it, I walked right off, and was thrown down the flight of eight steps to the first landing. I sustained serious injuries. There was no one leaving the theater at the same time with me, nor immediately in front of me. There was no railing or support down the first three steps, over the single step, or along the wall leading down the first flight of eight steps."

At the conclusion of her examination plaintiff rested her

case. Thereupon the defendant, to maintain the issue on his part, produced seven witnesses, including himself, who gave abundance of positive testimony that suitable handrails were present in the stairway at the time of, and long before, the accident, and that the exit was amply equipped with electric lights, both arc and incandescent, to enable persons to plainly see the steps and landings when ascending or descending. Five of these witnesses were present on the occasion in question, and testified that these lights were turned on and clearly lit the stairs, throwing plenty of light on the landing so that everything was distinct and plain. In so-called rebuttal, though more properly a part of her main case, plaintiff produced four witnesses who testified to having patronized the theater before the accident, and that there were no railings down the curved steps, but that they were put there after plaintiff fell. During the progress of the trial a recess was taken by consent of counsel, and judge and jury visited the premises and inspected the place where the accident occurred.

In connection with his charge the court submitted to the jury the following question, proposed in writing by defendant's counsel:

"Were there any railings leading down to the curved step in defendant's theater at the time of the accident?

In harmony with their general verdict in favor of defendant the jury answered "Yes" to the special question. There was an abundance of positive and negative testimony in sharp conflict as to the existence or nonexistence of facts alleged as grounds of negligence, given by both interested and apparently disinterested witnesses on each side. As heretofore held by this court, the case clearly involved issues of fact for the jury. The charge of the court, against which no error is assigned, plainly instructed the jury as to the nature of the case and the questions of fact within their province to decide. In view of the abundance of conflicting testimony on those issues,

we cannot conclude that the "verdict was contrary to the weight of evidence adduced at the trial," or that "the jury erred in its finding as to the special question submitted to it at the request of the defendant."

The remaining reasons urged by plaintiff in support of her motion for a new trial relate to the time when the railings down the stairway leading from the aisle of the theater were put in position; it being charged that defendant's testimony at the trial on that issue was manifestly false, misleading, and evasive. This claim is based largely on certain depositions taken by plaintiff subsequent to the trial before a commissioner.

At the trial defendant William Klatt testified that the rails leading from the center aisle to the curved steps were put up about four years previous, about the time the theater was remodeled, and had remained there since. On his subsequent examination before the commissioner, he again so testified, and further stated that said rails were included among the repairs made by certain contractors, that he did not know whether they had any plans and specifications for the work, and had no accounts or other written evidence showing when or by whom the rails were put in. Richard Mildner, a member of the firm of Mildner & Eison, architects, testified before the commissioner that his firm prepared the plans and specifications for remodeling the theater, and that these plans, which he produced, showed no railings down the steps; that, if any were placed there, it must have been done afterwards. Otto Damm, a member of the firm of contractors who had the contract of remodeling, identified the plans as those under which the work was done. He did not remember anything about the rails, but stated his books would show if they put them in. He later produced the books of his firm which showed no entries relating to installing any handrails down the first three flights of steps leading from the aisle of the theater. A witness named Christine Brewee testified before the commissioner to working at the theater when it was remodeled; that it was more than three months later