Forsythe

Appellant appeals from a judgment of the district court, sitting without jury, awarding damages for its negligence in failing to furnish to appellee, in its United Artists Theatre, a large downtown moving picture auditorium in the City of Los Angeles, a seat of sufficient strength to sustain her, the breaking of which inflicted on her serious injury.

In an agreed statement, appellant admits the amount of the injury to appellee. The appeal concerns claimed error in finding negligence as causing the injury and, if negligence exist, whether it is that of appellant.

*630 Appellee’s weight of 285 pounds of “solid flesh” is over the average, but appellant’s ticket seller had the usual opportunity to observe this and nevertheless sold appellee a ticket without warning her of an insufficiency in the theatre seats. Such a theatre extends a general invitation to the entire three million people in Los Angeles and its tributary population to patronize it, and it is a matter of judicial notice that among such invitees there would be a considerable number of overweight persons so addressed.

Appellee’s size was not only observable to the ticket seller, but also to the necessary theatre…