Carlin v. Krout

• Decision Date: 09 January 1923
• Docket Number: 48.
• Citation: 120 A. 232,142 Md. 140
• Parties: CARLIN v. KROUT.
• Court: Maryland Court of Appeals

120 A. 232

142 Md. 140

CARLIN v. KROUT.

No. 48.

Court of Appeals of Maryland

January 9, 1923

Appeal from Baltimore City Court; Walter I. Dawkins, Judge.

"To be officially reported."

Action by Mary J. Krout against John J. Carlin. Judgment for plaintiff, and defendant appeals. Reversed without a new trial.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Robert D. Bartlett and Edgar Allan Poe, both of Baltimore (Bartlett Poe & Claggett, of Baltimore, on the brief), for appellant.

Sydney R. Traub and James J. Lindsay, both of Baltimore (James J Lindsay, Jr., of Baltimore, on the brief), for appellee.

URNER J.

While passing over an undulating floor, known as the "ocean wave," in a building at the appellant's amusement park, the appellee, a woman 59 years of age, suffered the injury which is the occasion of this suit. The only question presented on appeal from the judgment recovered by the appellee is whether there is legally sufficient evidence of negligence in the construction or operation of the amusement device in the use of which she was injured. The "ocean wave" is composed of a series of five hinged platforms, having an aggregate length of 49 feet, which are given a vertical and longitudinal motion from beneath by crank shafts turned by an electric motor. The platforms are of wood, and are evenly joined together by flat metal hinges. Extending upward from the sides of the platform are solid wooden barriers, about three feet high, surmounted by pipe handrails. The side walls of the connecting sections are closely adjusted for the overlapping movement which occurs when the device is in operation. The handrails are so placed as to be 6 inches apart as their ends overlap. There is no lateral motion in any part of the device. At the time of the accident it was in perfect condition and operation according to its design.

The appellee was near the middle of the ocean wave when, as she testified, in moving her left hand from one section of the handrail to another, her arm was caught between the two rails, and, when she removed her right hand from the rail on the other side for the purpose of releasing her left arm, she fell to the floor, with her arm still held by the rails, and remained in that position for some minutes until an attendant stopped the machinery. The principal injury consisted of a fracture of the arm bones between the wrist and the elbow, from which a partial disability of the arm has resulted. A witness who accompanied the appellee by walking beside the ocean wave as she proceeded over it confirmed her account of the accident. It was testified by this witness, and by another of the appellee's companions, that when she fell her left arm was resting on top of the rail nearest to her, but how it was caught and held by the other rail, 6 inches away, does not appear from the testimony. An employee of the appellant testified that he was standing beside the ocean wave, to the appellee's left, as she was passing from the second to the third sections, and that a handbag suspended from her left arm caught on the end of the third section rail, and as she tried to recover it her arm went down between the rails and she lost her balance, but he jumped over the side as she started to fall, assisted her to a sitting position, her arm having become released, and then hastened to turn off the power. The witnesses for the appellee stated that there was no employee of the appellant near the ocean wave when the accident occurred, and that the handbag carried by the appellee was suspended from her right arm. While the handbag fell outside of the rails to the appellee's left, the explanation made by herself and her witnesses is that it was carried over to that side when she attempted to assist her left arm with her right hand.

The question as to the legal sufficiency of the evidence to support a recovery must be decided upon the assumption that the circumstances of the accident were correctly described by the appellee's witnesses. It is therefore necessary to proceed upon the theory that in some way other than by her handbag becoming entangled the appellee's arm was injured between the rails. But the acceptance of the appellee's statement to that effect does not require us to sustain her charge that the appellant was negligent in the construction and operation of the device which she was attempting to use. No evidence was offered to prove that it was defective or imperfect in design, material, or workmanship. Its structure was simple and whatever dangers its use involved were obvious. It was manifestly not intended to be regarded as a perfectly safe means of diversion. The special thrill it provided was partly due to the risks which those passing over it would inevitably incur. It was one of a number of unusual forms of amusement which the resort afforded. The admission fee entitled the visitor to use any or all of the various devices, or merely to observe their use by other patrons. Above the entrance to the building was a large notice to the effect that persons using the amusements must do so at their own risk.

The charge of negligence in this case does not relate to unseen defects or unexpected dangers, but to visible conditions presenting known hazards which were voluntarily assumed. To support the charge in relation to such conditions it was not sufficient to show that the appellee's arm was broken on or between the handrails as she fell on the undulating floor over which she was endeavoring to walk, but it was necessary to prove that the appellant had failed to make reasonable provisions to obviate or reduce the risk of such a misfortune. It is urged that an inference of negligence may be drawn from the fact that the ocean wave was so constructed as to permit the recurrent overlapping of the handrails to the extent of 6 or 8 inches. There is no proof that such an arrangement of the rails was improper or unnecessary. It is evident that handrails were requisite in order that the danger of falling might be diminished for the patrons, and as the rails must approach and recede with the movement of the sections to which they are attached, it may be that a slight overlapping of the rails, when...