Colwell v. Parker

• Decision Date: 11 December 1909
• Docket Number: 16,153
• Citation: 81 Kan. 295,105 P. 524
• Parties: ALLY COLWELL, Appellant, v. C. W. PARKER, Appellee
• Court: Kansas Supreme Court

105 P. 524

81 Kan. 295

ALLY COLWELL, Appellant, v. C. W. PARKER, Appellee

No. 16,153

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Dickinson district court; OSCAR L. MOORE, judge.

STATEMENT.

C. W PARKER is a manufacturer of tents, platforms, show fronts and other paraphernalia used in street fairs and carnivals. His place of business is at Abilene. He manufactured and leased to Raver & Darnaby a moving picture show for exhibition in a tent, entrance to which was by ascending steps to a platform, thence through a passage, and by descending steps about four feet to the ground inside the tent. Raver &amp Darnaby were holding a carnival at Oskaloosa, Iowa. The appellant entered the tent from the platform, and, in stepping to one side, fell to the ground and received injuries. To recover damages she brought this action against the lessees and the appellee, Parker. The petition alleged that at the time she entered the tent the exhibition was in progress; that the lights were turned off, and that by reason of the darkness she was unable to discover the steps and supposed the platform was on a level with the tent. The only negligence alleged against the appellee is that he failed to provide railings, or guards, at the sides of the platform or steps to prevent persons from stepping off.

The court instructed the jury that if the platform and steps were constructed in a manner similar to, and with the same protection as, other platforms and steps used for the same purpose throughout the country, and if they found that such platform and steps had been used by a great number of people and no accident other than the one in controversy had occurred, they should take these matters into consideration in determining whether an ordinarily prudent manufacturer would have had any reason to anticipate the accident; and, if they believed that an ordinarily prudent person would have no reason to anticipate such an accident, that the appellee could not be held negligent under the facts. They were also instructed that if they found from the evidence that the platform and steps were constructed in the usual and ordinary manner, and in a way usually regarded by manufacturers of such platforms and steps as reasonably safe for the use of the public, such would be the exercise of ordinary care on the part of the appellee.

The jury returned a verdict in favor of the appellant, awarding her $ 1500 damages. They made certain special findings of fact, among which are the following:

"(1) Ques. Was the defendant, C. W. Parker, guilty of any act of negligence which caused the injury of which the plaintiff complains? Ans. Yes.

"(2) Q. If you answer the question 'Yes,' then state what act of negligence the defendant, C. W. Parker, was guilty of which resulted in the injury of which the plaintiff complains? A. By not taking reasonable precaution in furnishing a railing.

"(3) Q. Who had immediate charge of the electric theater at the time the plaintiff was injured? A. Mr. Randahl.

"(4) Q. Was such person employed or paid by the defendant, Parker or in any manner under his control? A. No.

"(5) Q. Were the steps leading down from the wagon into the tent constructed in the usual manner for such carnival shows? A. Yes.

"(6) Q. Did the ticket taker belong with the carnival company, or did he represent the Oskaloosa baseball club? A. Represented the ball club.

"(7) Q. Was it his duty to prevent patrons of the show from entering while the lights in the tent were turned off? A. Yes.

"(9) Q. Was the injury to the plaintiff the direct result of the failure to enforce orders given by Raver & Darnaby to prevent patrons from entering the electric theater while the lights in the tent were turned off? A. Yes.

"(15) Q. How long had steps such as those from which the plaintiff fell been in general use? A. For several years.

"(16) Q. Is it not a fact that hundreds of thousands of people have passed down such steps without being injured? A. Yes.

"(18) Q. At the time the defendant manufactured the show entrance and steps from which the plaintiff fell did he know or had he heard of any injury resulting to any person from falling from steps similarly constructed and used? A. According to the evidence, no."

The court sustained the motion on the part of the appellee for judgment on the findings notwithstanding the general verdict and of this ruling the appellant complains.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE -- Proximate Cause -- Special Findings and Verdict...