Brennan v. Ocean View Amusement Co.

• Decision Date: 07 March 1935
• Parties: BRENNAN v. OCEAN VIEW AMUSEMENT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 587

194 N.E. 911

BRENNAN v. OCEAN VIEW AMUSEMENT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1935

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

Action of tort by Frederick F. Brennan, Jr., against the Ocean View Amusement Company, with trustee process. From an order granting defendant's motion for directed verdict plaintiff brings exceptions.

Exceptions sustained.

In passenger's action against amusement company for injuries received when thrown from roller coaster car, plaintiff's evidence that one of defendant's attorneys had been unable to find any officer or employee who knew whether safety strap in car was fastened or unfastened at end of ride held properly excluded.

W. R. Cook and F. B. Frederick, both of Boston, for plaintiff.

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

QUA Justice.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff on May 27, 1929, as a result of being thrown from one of the cars on a sharp curve of the ‘ Derby Racer,’ a roller coaster operated by the defendant at Revere Beach. The declaration is in six counts. Counts one and five do not allege negligence, but appear to be based upon the theory that the defendant was an insurer of the safety of its passengers. Counts three and four are based upon alleged false and fraudulent representations that the roller coaster was safe to ride upon. Count two alleges that the defendant was a common carrier and was negligent in the operation of the roller coaster, and count six alleges in general terms negligence of the defendant causing the plaintiff to be thrown from the car in which he was riding. At the close of the plaintiff's evidence the judge allowed the defendant's motion that a verdict be directed for the defendant on each count.

The ruling was clearly right as to counts one and five. There is no warrant for the contention that the proprietor of such an amusement resort, to whatever standard of care he may be bound, is an insurer as to either defects in construction or manner of operation. The ruling was also right as to counts three and four. The only evidence under these counts was that the plaintiff had seen a sign in front of the ‘ Derby Racer’ reading ‘ 15 c Safe Sane Sensible 15 c.’ There was no evidence that the plaintiff relied upon this as a factor in inducing him to ride. He had ridden before and knew in general what the racer was like from personal experience. The defendant was not a common carrier. It did not perform a public service in transporting passengers from one point to another. It merely furnished entertainment on its own premises. It would hardly be contended that the proprietor of a merry-go-round, for example, is a common carrier. See Clarke v. Ames, 267 Mass. 44, 47, 165 N.E. 696. Without this, count two includes nothing not also covered under the broader language of count six. Whether there was any error in directing a verdict for the defendant depends therefore upon whether there was any evidence to go to the jury under count six, which is based on negligence. We consider the case on that footing.

The ‘ Derby Racer’ was constructed in the form of a figure eight with a series of dips and rises and sharp curves on which the tracks were ‘ banked.’ There were two tracks, which for the most part paralleled each other a few feet apart. The cars, containing three seats each, ran in ‘ trains' of two cars to the train. They were hoisted by power to the top of the structure and then proceeded by gravity over the dips and rises and around the curves until they reached the starting point. No attendant rode on the cars, and they were not equipped with brakes. The racing feature was introduced by starting two trains at the same time, one on each track, the tracks being so laid out that as the two trains proceeded down the course, first one and then the other would forge ahead. As the cars ran rapidly and without any means of controlling them from the time they left the top until they reached the bottom, it is plain that their safe and successful operation must depend to a large degree upon proper construction of the tracks and their maintenance in good repair and at the proper grade and alinement. The car seats were constructed with sides which came up ‘ just under the armpit’ of the rider, and the backs were a little higher. Each seat was fitted with a two inch heavy leather harness belt in two parts, one part being fixed at each side of the seat and one part being equipped at the free end with a heavy metal snap hook which could be attached to one of several metal rings on the free end of the other part so as to make a continuous belt over the laps of the passengers which was to some extent adjustable according to the number and sizes of the passengers. In addition there was an iron bar movable on pivots which passengers could take hold of to steady themselves.

On the evening of the accident the plaintiff, a young man about twenty-seven years old, and six other young men, who were in a group with him, bought tickets, and took seats in two trains which were to race each other. Some of the party got into one train and some into the other. The plaintiff rode alone in the back seat of his train. From this point on the jury could have found, accepting that aspect of the evidence most favorable to the plaintiff, but charging his own admissions against him, the following: He fastened and snapped the strap across in front of him in the middle ring, and an attendant whose duty it was to inspect the straps looked at it. It was fairly tight across his lap. The first part of the trip was accomplished without any unusual occurrence. The ride was a hilarious one with shouting and waving of hands from one car to the other. The plaintiff had been waving with one hand and holding the strap with the other. His train had just passed its competitor and was going up grade toward a curve. He was sitting in the middle of the seat. There were several jerks going round the curve. He then held the strap with both hands. There was another jerk, and he was lifted. The strap seemed to slide through his hands. That was the last he remembered until he came to after the accident. He did not hold onto the bar, although he could have done so, and it would have been a much firmer brace than the strap, if there was a pull to the side. He held the strap only. He had the impression that it was still in position immediately before the accident. He did not unfasten the snap at any time. He did not stand up and could not do so with the strap in the position in which it was. He had not been warned to hang on to the bar instead of the strap. He knew what the bar could be used for, ‘ that was rather obvious.’ There was other evidence that the plaintiff was thrown from the car in which he was riding on to the track in front of the other train and was seriously injured. After the accident there was ‘ quite a scar’ on the back of his left hand in the fleshy part between the thumb and finger. The train proceeded on to the end of the course without further incident. There was evidence that the usual speed of the trains at that particular curve was fifteen or twenty miles an hour, and a witness testified that in his opinion at the time of the accident this train was going twenty-five miles an hour.

Having invited the plaintiff to ride for hire, the defendant owed to him the duty of exercising reasonable care under the...