Beaulieu v. Lincoln Rides, Inc.

• Decision Date: 28 February 1952
• Parties: BEAULIEU v. LINCOLN RIDES, Inc. BEAULIEU v. LINCOLN PARK AMUSEMENT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 417

104 N.E.2d 417

328 Mass. 427

BEAULIEU v. LINCOLN RIDES, Inc.

BEAULIEU v. LINCOLN PARK AMUSEMENT CO.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 22, 1951.

Decided Feb. 28, 1952.

W. A. Torphy, Fall River, J. P. McGuire, Fall River, for plaintiff.

Walsh & Bentley, New Bedford, for defendants.

Before QUA, C. J., and LUMMUS, WILKINS and WILLIAMS, JJ.

LUMMUS, Justice.

These are actions of tort, one against Lincoln Rides, Inc., the owner and operator of an amusement device, and the other against Lincoln Park Amusement Co, the owner and operator of an amusement park in which that device was located. At the conclusion of the evidence the judge directed a verdict for each defendant, subject to the exception of the plaintiff. There was no evidence that the Lincoln Park Amusement Co. was in any way responsible for the injury to the plaintiff, and the direction of a verdict in favor of that company was right. The question comes on the direction of a verdict in favor of Lincoln Rides, Inc., hereinafter called the defendant. If the judge erred in directing a verdict for that defendant, it is stipulated that judgment against it shall be entered for $2,500 without costs.

There was evidence that the plaintiff, with her sister and some children, arrived at the park about 1 p. m. on June 26, 1946. Until 2 p. m. the rides on amusement devices were free, but after that hour payment was required. The 'Whip,' which was owned and operated by the defendant, consists of cars which are attached to a central point on a stationary oval platform, and travel around with a swaying and tipping motion. The plaintiff sat in a car between two children and brought the safety bar up in front of them, holding it with both hands. The safety bar was of iron and was designed to keep pasengers from falling out. When the plaintiff got into the car the safety bar appeared to be working properly. After the ride started she noted that the bar did not fit on one side. As the ride progresed the bar went forward, and she was thrown out and injured. She paid nothing for her ride on the 'Whip' because it was before 2 p. m.

The defendant argues from the fact that the plaintiff did not pay for the ride that the case falls within the rule of Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A.1918C, 264, that one who injuries another while conferring upon him a gratuitous benefit is not liable to him for less than gross negligence. But there is nothing in the record to indicate that the defendant, a business corporation, undertook to give the plaintiff a pure gratuity. The jury could find that the purpose of giving free rides, like the purpose of distributing free samples of merchandise, was merely to interest customers and increase business. To impose liability for ordinary negligence, it is only necessary for a jury to find some business advantage to the defendant. Lyttle v. Monto, 248 Mass. 340, 142 N.E. 795; Semons v. Towns, 285 Mass. 96, 100, 188 N.E. 605; O'Brien v. Bernoi, 297 Mass. 271, 8 N.E.2d 780; Epstein v. Simco Trading Co., Inc., 297 Mass. 282, 8 N.E.2d 767; Allen v. Allen, 299 Mass. 89, 11 N.E.2d 922; Weida v. MacDougall, 300 Mass. 521, 16 N.E.2d 60; Donovan v. Johnson, 301 Mass. 12, 16 N.E.2d 62; Lepri v. Levy, 315 Mass. 105, 51 N.E.2d 959; Roy v. Bacon, 325 Mass. 173, 89 N.E.2d 512; Howes v. Kelman, 326 Mass. 696, 96 N.E.2d 394. There was nothing of a social nature in the relations of the parties, as in O'Brien v. Shea, 326 Mass. 681, 96 N.E.2d 163. In principle the case resembles Foley v. McDonald, 283 Mass. 96, 185 N.E. 926, where a defendant dealer was held liable for ordinary negligence while demonstrating an automobile to a prospective customer.

There was evidence of the negligence of the defendant. The apparatus was wholly in the control of the defendant. The plaintiff did nothing but sit in the car and take hold of the safety bar, as she was expected to do. She did not notice the want of proper fastening of one end of that bar until the ride had begun and it was too late to withdraw. The failure of the apparatus to work properly when it was being used as intended was evidence of negligence of the proprietor. Brennan v. Ocean View Amusement Co., 289 Mass. 587, 593, 194 N.E. 911; Matthews v. L. & L. Enterprises, Inc., 314 Mass. 538, 539, 50 N.E.2d 815; Jeroma v. McNally, 324 Mass. 385, 387, 86 N.E.2d 638.

The defendant does not argue that the plaintiff assumed the risk or was guilty of contributory negligence. It must be taken as waiving...