Denver Park & Amusement Co. v. Pflug

• Decision Date: 09 December 1924
• Docket Number: No. 6703.,6703.
• Citation: 2 F.2d 961
• Parties: DENVER PARK & AMUSEMENT CO. v. PFLUG.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 961 (1924)

DENVER PARK & AMUSEMENT CO. v. PFLUG.

No. 6703.

Circuit Court of Appeals, Eighth Circuit.

December 9, 1924.

Edwin H. Park, of Denver, Colo., for plaintiff in error.

Phillip Hornbein, of Denver, Colo., for defendant in error.

Before LEWIS, Circuit Judge, and MUNGER and MILLER, District Judges.

LEWIS, Circuit Judge.

Defendant in error went with friends to the amusement park of plaintiff in error on the evening of September 5, 1921. An admission fee was paid to enter the park, and in the park there were various places of amusement which required additional entrance fees. Mrs. Pflug walked about the park, spent some time in dancing, and then went with some of her friends into a place called Crack the Whip. From there they went to another place of amusement called Just for Fun. Mrs. Wimsett and Mr. Bastian were with her. They walked through a dark hallway on an agitated floor, met with other unusual happenings while there, and finally came to the top end of a wide, inclined, moving canvas belt. The witnesses give the height of the upper end of this belt at from 10 to 12 feet, its lower end 14 to 15 inches above a platform covered with matting, and its length from 28 to 30 feet. It is operated over rollers. It carries those who sit upon it at the top downward to the platform. Mrs Pflug and her two friends got upon this belt, sitting abreast, Mr. Bastian being in the center. Immediately after reaching the platform it was found that Mrs. Pflug's right leg had been injured, consisting of oblique fractures of the lower ends of the tibia and fibula. She brought this action and recovered damages for the injury. The ground of liability charged is this:

"That the said amusement device was inefficiently and negligently operated on the said 5th day of September, 1921, at 11:30 p. m. in that, the usual number of guards were not stationed at the bottom of the chute to catch the patrons as they reached the bottom, so as a result thereof, the feet of the plaintiff shot out from under the plaintiff and she was hurled with such violence to the floor that she broke her right leg and suffered the injuries hereinafter set forth. * * * That the said negligence of the defendant and the resulting dangerous condition of the device was caused by the fact that there were more passengers at that particular moment than there were guards to catch them, namely, that while the other woman passenger was assisted by a guard, there was no guard stationed there at that particular time to assist and catch the plaintiff, by reason of which negligence, in permitting and inviting the plaintiff to ride or enter the said amusement device without providing a guard to catch her, the plaintiff, by the momentum of her body descending from the height and slope of the slide, was in nowise assisted, and the plaintiff was hurled violently to the floor, suffering the injuries set forth."

Persons who came down on this belt, including Mrs. Pflug and her two friends, were instructed to sit in an upright position.

As one's feet touched the platform he usually stood upright and stepped aside. That seemed to be the natural thing to do. The moving belt was an apparent aid in rising. The device was much like slides for children in public parks and school yards. There is no evidence in the record that Mrs. Pflug was hurled violently to the floor, other than the fact that she came down on the belt to the platform. The belt was kept moving at an approximately uniform rate of speed. Mrs. Pflug is a school teacher, 35 years of age, and must have quickly and fully seen and understood the situation. She describes how the injury occurred thus:

"When we came to the level of the street, the canvas came to the level of the street and it was about 14 inches, 15 from the street, and I went off the end and struck my foot on the walk and broke the ankle. * * * When I came to the end of the belt I didn't bend my knees, no notice telling me to; came down with such swiftness I just slid on and landed in this position, both feet out and rested on this elbow."

There can be no doubt that she landed on the platform. It could not be otherwise. The guard, standing on one side at the foot of the belt, testified that as she came down she was leaning on the left side somewhat and that she landed off sidewise. Mr. Bastian did not testify. Mrs. Wimsett's testimony is more general than that of Mrs. Pflug as to how the injury occurred. She said that she noticed the position of plaintiff when she landed, and that her legs were straight out with the injured foot turned over slightly. As the three came down the guard stood on the side on which Mrs. Wimsett sat, and he testified that as she reached the platform and almost got to her feet he took hold of her hand and assisted her. Mrs. Wimsett said that the guard caught her at the bottom, took hold of her arm and placed her on her feet. We think it evident that the injury did not occur while Mrs. Pflug was endeavoring to rise to her feet after she found herself prone upon the platform, but that it occurred, as she says, when her foot struck the (platform) walk; and that she landed in the way she did because she kept her legs straight out and rigid. She did not bend her knees when she reached the end of the belt, thus permitting both feet to come upon the platform, and thereupon attempt to stand. That would seem to be a precautionary act that every one would take under the circumstances without being told to do so.

It was further charged in the complaint that customarily the defendant had two guards instead of one, as on this occasion, and when it had only one guard present it would let only one person come down at one time. There was only one guard present on this occasion, but no one testified that it had ever been the custom or...