Kushner v. McGinnis

Citation289 Mass. 326,194 N.E. 106
PartiesKUSHNER v. McGINNIS (two cases).
Decision Date30 January 1935
CourtUnited States State Supreme Judicial Court of Massachusetts

289 Mass. 326
194 N.E. 106

KUSHNER
v.
McGINNIS (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1935.


Exceptions from Superior Court, Suffolk County; Weed, Judge.

Actions of tort in the Superior Court by Joseph and by Anna Kushner against John A. McGinnis, proprietor of an amusement device. The judge found for plaintiffs in the sums of $137 and $1,500, respectively, and defendant saves exceptions.

Exceptions overruled.


[289 Mass. 327]J. M. Russell and H. J. Levi, both of Boston, for plaintiff.

J. N. Clark, of Boston, for defendant.


QUA, Justice.

These two actions of tort were tried together by a judge of the Superior Court without a jury. The two plaintiffs are husband and wife. The wife's action is to recover damages for personal injury to herself. The husband's action is to recover consequential damages for injury to his wife. For convenience the wife will be referred to as the plaintiff, unless otherwise indicated.

Findings of the trial judge establish the following facts: At the time of the accident the defendant was operating and in control of an amusement device known as the ‘Dragon Pit’ at Revere Beach. ‘A patron upon admission entered a maze which led eventually to a different type of maze and then to some rooms with tilted floors, and finally to a narrow stairway leading to the top of a slide or chute. This chute was between three and four feet wide. The boards forming the chute or slide were kept highly polished like a dance hall floor. The slide was 75 to 80 feet long and the top landing was at an elevation of about 21 feet above the foot of the slide. The slide started down at an angle of about 45° for about 40 feet to a height of about to one's knee above the floor and then there were two or more mave-like humps before the slide came gradually to the floor level [289 Mass. 328]at the further end. The slide was designed to bring people to the foot of the slide and not to come too fast. At the landing at the head of the stairs by which a patron approached the slide, the end of the slide was not in sight, the slider passing through a sort of tunnel for about 30 feet. The tunnel was lighted. At the wall at the foot of the slide a mattress similar to mattresses used in gymnasiums, eight or nine inches thick, was fastened against the wall across the end of the slide. An attendant was kept by the defendant on duty at the head of the slide to help patrons prepare to make the slide, and burlap bags were furnished, upon which patrons might sit in going down and in which they might insert their feet if they desired to protect stockings, dresses and shoes. On the further side of the slide another stairway led down to the floor below by which patrons not wishing to

[194 N.E. 107]

take the slide might return to the street level and the exit, and by which boys employed to return the burlap bags reached the top landing. An attendant stood at the foot of the slide about six feet from the wall to assist patrons in leaving the slide and to retrieve the...

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