Carlin v. Smith

• Decision Date: 11 June 1925
• Docket Number: 39.
• Citation: 130 A. 340,148 Md. 524
• Parties: CARLIN v. SMITH.
• Court: Maryland Court of Appeals

130 A. 340

148 Md. 524

CARLIN v. SMITH.

No. 39.

Court of Appeals of Maryland

June 11, 1925

Dissenting Opinion June 29, 1925.

Motion for Reargument Overruled Oct. 7, 1925.

Appeal from Court of Common Pleas of Baltimore City; W. Stuart Symington, Jr., Judge.

"To be officially reported."

Action by Sadie Smith against John J. Carlin for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Bond C.J., dissenting.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, and WALSH, JJ.

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

Robert R. Carman, of Baltimore, and Saul Praeger, of Cumberland (G C. A. Anderson, of Baltimore, on the brief), for appellee.

PARKE J.

The appellee, Sadie Smith, and her husband, John R. Smith, Arthur G. Fuller, and Ethel Fuller, his wife, and Fred W. Mills and Thelma Mills, his wife, formed a party, which was enjoying on September 3d, 1923, the various forms of amusements maintained by John J. Carlin, the appellant, at "Carlin's Park," Baltimore, for the use and diversion of the public. They had visited the resort before, and knew the general form of entertainment which the place afforded. After the party had tried many of the mechanical devices maintained by the proprietor, they came to one, which was called "Just For Fun," which had an entrance in imitation of an opening into a rock cave, but everything else was concealed. An attendant was in charge, who cried an invitation, but the members of the party were ignorant of the nature of this device, and there was nothing visible to give them a clue, and they hesitated. Mrs. Fuller said to the attendant:

"What kind of a place is that? I am afraid to go in there. Is it safe?"

The attendant answered:

"Why certainly it is safe; if it wasn't safe, we couldn't afford to run this place."

The six then bought tickets, and went into the device, walking through a passage, with dark places, slanting floors and shaking floors, until a door was reached, where another attendant was stationed, who stopped the party with the statement that only two were allowed to pass through the door at a time.

The appellee and her husband were the first pair to go through the door into a small dark room, which apparently had four walls, and a fast floor, and which was painted in the semblance of an elevator. The only thing in the room was a smooth wooden bench, against the back wall. The attendant directed the appellee to sit on the bench, and the husband to put his arms around his wife. While in this position, the appellee was again assured by the attendant that the device was safe; the door was closed, and the husband and wife were alone in the darkness with no idea of what was going to happen, and with no opportunity to see or know anything of the hidden mechanism with which the device was operated. Suddenly, without any warning, the bench on which they were seated dropped, and the floor fell from under their feet, and they, according to their testimony, were hurled with such force and precipitancy from the bench that they shot, helpless and recumbent, upon a moving endless canvas belt, which carried them down the length of an undulating decline of 61 feet.

As the appellee was propelled from the bench and cast upon the canvas, she was hurt by being struck a blow on the end of her spine. She described it as a "terrific blow--it was enough to hurt her terribly." The appellee cried out in pain when she was injured, and an attendant called to her to sit up on the moving canvas, but she was unable to obey, and was held in the arms of her husband until the end of the canvas belt was reached, where the attendant caught her.

The attendant asked if the appellee wanted to be taken to a doctor, but she said no; and the party left for their homes in Cumberland. The appellee continued to suffer, and, while on the way, the women examined her body and found a bruise at the end of her spine, where the blow had been inflicted. When she reached home a doctor was summoned, and an examination was made. The doctor saw the bruise, and discovered that she had sustained a fractured dislocation of the coccyx, which is the small terminal bone of the spine. After some months the fracture healed with callous, in a deformed or angulated position and with a slight lateral displacement of the lower fragment of the coccyx. The injury is painful and permament, unless relieved by a surgical operation, which was not advisable on account of her general physical condition.

It is for this serious injury that the appellee recovered a verdict of $15,000 against the appellant in the court of common pleas of Baltimore city. The appeal seeks to have reviewed four rulings. Three of these rulings are on the evidence and the fourth is on the prayers. As the principal question is whether there was error in the court's refusal to direct a verdict for the appellant, the testimony bearing on that point will be stated.

"Just for Fun" was one of those contrivances designed to attract and amuse the public by providing a succession of amusing, exciting, and ridiculous situations and experiences, through simulated dangers and suprising and bewildering conditions, whose thrills and alarms were to be enjoyed in the confidence that no latent peril attended their creation. The culmination of "Just for Fun" was when the small room was entered. It seemed an elevator. This illusion was produced by its walls being painted to represent one, and by two small electric light bulbs, which, if lighted, did not prevent the interior from being dark.

The room was 6 feet high, and was 4 feet by 5 feet in size. The side and back walls were stationary. Against the back wall of the room was a wooden bench with a smooth polished surface, 42 inches in length, and 16 inches wide, and 12 inches above the floor of the room. The seat was 1 inch thick, and it had a solid oak back. The front wall and the floor of the room were built as a unit and formed a right angle. By means of secret mechanism, which was operated from the outside of this chamber, the apparently stable front wall, floor, and bench were movable at the will of an operator of the appellant, who, unseen, could look through an opening into the room.

Immediately under this floor of 5 by 4 feet was a pad about 5 feet square, and from 8 to 10 inches thick. The top of this pad was 4 inches below the floor of the room. Beyond the pad, and to the front wall of the room. was a smooth undulatory wooden surface or incline 61 feet in length, which had a drop of 9 feet between its beginning and end. At the peak of each successive undulation, which were about 8 feet apart, parallel wooden rollers were set across the wooden surface, with the ends turning in blocks, so that the revolving surface of every roller was, when properly adjusted, in perfect alignment with the surface of the undulations. At either extremity of this wooden incline was a transverse wooden roller, whose revolving top surface was intended to be in line with the end of the device. The higher of these two rollers, which may be identified by calling it the second roller, was 14 inches in diameter, and 7 feet from its axis, and parallel to this second roller, and on the same level was the center of another wooden roller, which will be called the first roller.

An endless five or six ply canvas belt, which was about 210 feet long, 68 or 69 inches wide, and which weighed 600 pounds, and was propelled by an electric motor, traveled over and under the wooden undulatory surface of the incline at rapid speed, in contact with the terminal rollers and with the other rollers, which last served only to relieve the friction of the contact of the belt with the surface of the wooden incline. But in the distance of 7 feet between the first and second rollers, which was directly under the floor of the room, the canvas belt passed under the floor and over the pad which has been described. Underneath this floor was attached a projecting wooden roller, 4 inches in diameter. When the walls of the room were in contact, this last-mentioned roller pressed down the canvas belt so that, under this floor, the belt was forced 4 inches out of alignment and barely escaped the top of the pad as it ran.

So long as the device was properly maintained and worked, when the operator pulled the lever and pushed down the latch at the same time, the seat of the bench tilted forward 45 degrees in an arc of 16 inches, and the floor dropped away while it and the front wall moved upward in an arc of 7 feet, so that the pressure of the roller attached to the floor was released, and the canvas belt arose 4 inches to run on the level of the top line of the first and second rollers, which was 4 inches above the level of the top of the pad. The usual time for these concurrent movements was five seconds, at the end of which the front lower edge of the bench should be in contact with the surface of the canvas belt as the occupants of the seat were slid easily off onto the moving canvas belt not more than 5 feet from the axis of the second roller, over which, and then down the 61 feet of the undulatory incline, the passengers were carried by the belt in twelve seconds.

In order to maintain the tension necessary to pull the canvas belt and to take up the slack in the canvas belt, there was a weighted tightening idler with two long eccentrics at the bottom in the machinery room. It was also shown by the appellant's testimony that the purpose of the pad was to protect a passenger from injury when he was tilted from the seat, if the belt sagged for any reason, as the constructor of the device was afraid that the belt would give way at times. The proof is that...