Coaster Amusement Co. v. Smith

• Decision Date: 20 February 1940
• Citation: 194 So. 336,141 Fla. 845
• Court: Florida Supreme Court
• Parties: COASTER AMUSEMENT CO. v. SMITH.

194 So. 336

141 Fla. 845

COASTER AMUSEMENT CO. v. SMITH.

Florida Supreme Court, Division A.

February 20, 1940

Rehearing Denied March 18, 1940.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action by Flo Smith, a minor, by Flora Smith, as her next friend against the Coaster Amusement Company, a corporation, for injuries sustained when plaintiff was thrown from a roller coaster. To review a judgment for plaintiff, defendant brings error.

Affirmed.

TERRELL C.J., dissenting.

COUNSEL Charles Cook Howell and Charles Cook Howell Jr., both of Jacksonville, for plaintiff in error.

Evan T Evans, of Jacksonville, for defendant in error.

OPINION

BUFORD, Justice.

Writ of error brings for review judgment in favor of the plaintiff for injuries received by the alleged negligent operation of a device known as a roller coaster.

The record shows that while plaintiff was riding on this amusement device the car in which she was riding was by some means caused to perform a sudden and unusual jerk and lunge and to sway with a sudden, violent and unusual course from one side to the other, which threw the plaintiff from the car and caused her injury.

Three questions are presented by plaintiff in error, defendant in the court below, as follows:

'1. When, in a suit for personal injuries sustained by the plaintiff in being thrown from a 'roller coaster' as it gave an unusual lunge, the same evidence which shows the injury and that it was caused by a device under the defendant's exclusive control, shows also that the defendant had neither actual nor constructive notice of any defects in the device, does the doctrine of res ipsa loquitur apply?'

'2. If, under the circumstances stated in the preceding question, the doctrine is applicable, can it support a verdict for the plaintiff in spite of explanatory testimony by the defendant which is neither contradicted nor impeached by the plaintiff.'

'3. If the doctrine is so applicable, should the Court charge the jury concerning it, even though the defendant has offered such explanatory testimony?'

As a basis for the contentions presented by those questions, the plaintiff in error says:

'It appeared, from the defendant's testimony, but without contradiction, that on the night the plaintiff was injured 1236 persons rode the roller coaster without injury or mishap of any sort. The plaintiff, therefore, was not only the only unfortunate one of the group of six who were in the car with her; he was also the only unfortunate one in that crowd of 1236 thrill seekers.

'And from the defendant's testimony, it also appeared, and also without contradiction or impeachment, that the entire roller coaster device was over-hauled and all necessary repairs or replacements made in March preceding the injury in June; that no repair work had since been necessary; that in the month of June the track and cars were inspected every day and no defects in either had been found. The car in which the plaintiff was riding when hurt was inspected immediately after the accident nothing was wrong with it, nothing was out of fix about it. Next morning the track was inspected--nothing was wrong with it, nothing was out of fix about it.

'The next night, the same car ran and hauled patrons over the same track, no repairs or replacements of any sort having been made since the plaintiff's accident--and no mishap occurred that night.

'As stated, none of this testimony was contradicted nor was any witness giving it impeached--indeed no attempt was made to do either.'

The infirmity of the contention of plaintiff in error is that on the trial it gave no explanation of the cause of the unusual action of the roller coaster which resulted in the injury complained of.

The proof shows conclusively that the roller coaster did just what plaintiff said it did and after the defendant proceeded to offer evidence tending to prove that the particular car or coaster involved was in perfect mechanical condition and gave no explanation of the cause of the unusual gyrations of it. The jury was warranted under such condition to draw the reasonable inference that there was a cause for the occurrence for which the defendant was responsible.

In the case of American District Electric Protective Co. v. S. A. L. R. Co., 129 Fla. 518, 177 So. 294, we held:

"Res ipsa loquitur' is not a substantive rule of law, but is rather a rule of evidence and permits jury, but not court in a jury trial, to draw inference of negligence, where instrument causing injury is shown to have been under exclusive management and control of party charged with negligence, and an accident has occurred from it that under circumstances of due care would not have occurred in the ordinary course of events, except for negligent handling by party having control of instrument causing injury. * * *

'Doctrine of 'res ipsa loquitur' is that, where thing which caused injury complained of is shown to be under management of defendant, or his servants, and accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that accident arose from want of care.'

In Feldman v. Chicago Rys. Co. et al., 289 Ill. 25, 124 N.E. 334, 338, 6 A.L.R. 1291, it is said:

'The rule is that negligence is never presumed, but that the circumstances surrounding the case where the maxim of res ipsa loquitur applies amount to evidence from which the facts of negligence may be found; that is, in a case within the maxim of res ipsa loquitur, proof of the circumstances of such case and of the injury constitutes a prima facie case of negligence, and will justify a verdict unless such prima facie case is overcome by proof showing that the party charged is not at fault. Chicago Union Traction Co. v. Giese [229 Ill. 260, 82 N.E. 232], supra; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, 74 N.E. 410; Chicago City Railway Co. v. Rood, 163 Ill. 477, 45 N.E. 238, 54 Am.St.Rep. 478; New York, Chicago & St. Louis Railroad Co. v. Blumenthal, 160 Ill. 40, 43 N.E. 809; Hart v. Washington Park Club, 157 Ill. 9, 41 N.E. 620, 29 L.R.A. 492, 48 Am.St.Rep. 298. The burden rested upon defendants in error to overcome the presumption of negligence arising from the circumstances in this case. The record contains no evidence explaining the cause of the accident or overcoming the presumption of negligence. We are of the opinion, therefore, that the plaintiff in error was at the time of the injury a passenger, to whom defendants in error owed the highest degree of care, and that under the first and second counts of the declaration and the circumstances in this case a prima facie case of negligence was made out under the doctrine of res ipsa loquitur. There was no explanation of why the injury occurred. It follows that there was no evidence on the part of the defendants in error to overcome this presumption, and the jury were therefore justified in returning a verdict finding defendants in error guilty of negligence.'

In Bressler v. New York Rapid Transit Corporation, 277 N.Y. 200, 13 N.E.2d 772, the Court held:

'These facts in themselves made out a prima facie case of negligence, which means that, in the absence of explanation showing freedom from negligence, the law would hold the railroad company liable. This is known as the law of res ipsa loquitur, and was stated by us in Bressler v. New York Rapid Transit Corporation, 270 N.Y. 409, 1 N.E.2d 828, to be applicable here. Upon this theory the plaintiff has retried this case and proved these facts.

'The defense undertook to meet the presumption arising from the happening of the accident itself, and offered testimony that the glass was broken by boys on the outside throwing stones against it. The trial judge properly left the question of fact to the jury.'

In Warren v. Missouri & Kansas Telephone Co., 196 Mo.App. 549, 196 S.W. 1030, 1033, it was held:

'The defendant introduced evidence tending to show absence of negligence on its part; that it used a high degree of care in maintaining and operating its telephone system, and had in use safety appliances, such as lightning arresters, fuses, etc.; that there was no discovered defect in these appliances. Without quoting or commenting on this evidence it is sufficient to say that it is yet a question for the jury to say whether defendant had discharged the burden of proof cast upon it. The credibility of the explanation and its sufficiency were questions for the jury, and the prima facie case of the plaintiff is not necessarily overthrown by uncontradicted evidence that the appliances were constructed and operated in a proper manner. Curtis' Law of Electricity, § 592, p. 902; Kelly v. City of Higginsville 185 Mo.App. 55, 60, 171 S.W. 966.'

In Fitzgerald v. Southern Ry. Co., 141 N.C. 530, 54 S.E. 391, 393, 6 L.R.A., N.S., 337, it was held:

'It is very generally held that direct evidence of negligence is not required, but the same may be inferred from facts and attendant circumstances, and it is well established that, if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. Thus, in Shearman & Redfield on Negligence, § 58, it is said: 'The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant produces evidence to rebut the presumption. It has sometimes been held not sufficient for the plaintiff to establish a...