Cooper v. Winnwood Amusement Co.

• Decision Date: 21 November 1932
• Parties: RENA COOPER, RESPONDENT, v. WINNWOOD AMUSEMENT COMPANY, APPELLANT
• Court: Kansas Court of Appeals

55 S.W.2d 737

227 Mo.App. 608

RENA COOPER, RESPONDENT, v. WINNWOOD AMUSEMENT COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

November 21, 1932

Appeal from Circuit Court of Clay County.--Hon. Ralph Hughes, Judge.

AFFIRMED.

Judgment affirmed.

Harry G. Kyle and Walter A. Raymond for respondent.

James S. Simrall, Paul C. Sprinkle and Ingraham D. Hook for appellant.

OPINION

ARNOLD, J.

This is an action in damages for personal injury.

Plaintiff is married and resides in Kansas City, Missouri; defendant is a corporation and, at the time of the accident complained of was engaged in operating for profit a public amusement park in Clay County, Missouri, known as Winnwood or Winnwood Beach. As one of the attractions at the park, there was operated a concession called "Whirl Winn"--a device commonly called a roller coaster. The device consisted of steel rails, over which were operated trains, each having three cars, each car having three seats and each seat designed to carry two passengers. The track was constructed in a series of waves, consisting of high peaks followed by deep depressions. The first peak was approximately 69 to 76 feet high, the next 65 feet high, and each succeeding peak was correspondingly lower than the preceding one. Between these peaks, the track sloped steeply down almost to the ground, and then up again to the top of the next peak. The slope down from the first peak was a descent of 48 degrees and that of the second (the one here involved) was 49 degrees, a drop of 64 feet in a run of 110 1/2 feet. The cars had wheels which were without flanges, as were the rails. The cars had underslung wheels running on the rails from beneath, the purpose being to keep the cars on the track and prevent too much wobbling.

The trains were pulled to the top of the first peak by means of a chain operated by power, then released, and from there on, were operated by gravity. After being released from the chain, the trains gathered speed and momentum as they proceeded. There was no control device by which they could be stopped or controlled until the end of the journey, when they were stopped to change passengers.

The testimony in plaintiff's behalf showed that, as the cars descended the inclines, by reason of the steepness and the great speed attained by the cars, passengers were raised out of their seats and remained so suspended until the cars reached the lowest point of the descent and suddenly started up the next incline. This brought the bodies of passengers into contact with the seats at a time when their bodies were traveling downward. Plaintiff's testimony shows the cars traveled at great speed and pitched and tossed.

The public was invited to the park and to ride on the "Whirl Winn," a charge of 15 cents being made for the first ride and 10 cents for subsequent rides. Special rates were made for picnic parties and for special groups. On June 15, 1930, plaintiff, in company with others, visited said park to attend a picnic known as the "Gypsy Tourist picnic." At about 3:30 P. M. plaintiff, in company with her daughter and two young men, paid the required admission fee, and plaintiff and one of the young men seated themselves in the rear seat of the rear car of the train on the "Whirl Winn." Plaintiff never had ridden this coaster before and she testified she did not know about the steep dips; that when she got into the car she said to the attendant, "there is no strap" and the attendant said "you don't need any strap;" and said nothing in the way of warning. However, he did say he would take her camera which she was holding in her hand. Plaintiff's testimony shows the cars were constructed of plain boards, without pads or cushions on the seats or backs; that there were no straps to serve as safety devices to hold passengers in their seats, or to which they might hold for safety; there were no cleats, guards or stirrups for the feet, and no means of bracing or holding the feet; that the only device of any nature to aid passengers in remaining in their seats and bracing themselves against jolts and jars, was a steel rod across the back of each seat immediately in front of the passengers; that this rod projected back about three inches from the preceding seat, approximately on a level with the knees, and so far in advance of the seat that the ordinary sized passenger could reach it only by extending his arms full length.

The testimony in defendant's behalf in regard to the construction of the car was to the effect that the cars were of the latest type of construction, had cushions seven inches thick, supported by springs on both seat and back, and that the steel rod extended back from the seat some nine to twelve inches; that straps were not used in the operation of the latest improved roller coaster cars, and that the cars used on June 15, 1930, were of that type. However, this conflict in testimony was a matter for the jury and we need not give it further consideration.

Plaintiff testified that, as the train started, she took firm hold of the rod on the back of the seat in front of her, with both hands and held on with all her force until the accident; as the car passed over the crest of the second peak, it seemed to be going straight down, by reason of its fast speed; plaintiff's body was raised off the seat 12 to 18 inches, her feet were raised off the floor--as there was nothing whereby she could hook her feet and brace herself; as the car reached the lowest part of the decline and started upward, her body was still in the air; that her body in descending and the car ascending came into violent contact; that she was bent a little forward, and in the contact her buttocks came squarely down on the hard seat with great force; that she cried out from pain in the region of her lumbar vertebrae, and begged that the car be stopped; but there was no way to stop the car until the end of the journey, and when the end was reached, plaintiff was removed from the car, placed on a cot in defendant's office, and two of defendant's doctors were called. The doctors taped her back in the lumbar region and gave her a sedative.

The doctors, testifying for defendant, corroborated plaintiff in this, and further stated she complained of great pain in her back and lumbar region. They further testified there were marks on plaintiff's back and one shoulder where she had recently been taped, and there was a tape on one of her wrists. Plaintiff denied there was a tape on either of her wrists, and explained she had recently been taped for pleurisy and that the marks therefrom were on her shoulder and chest. The doctors testified that they placed no tape on her wrist, but plaintiff testified that they did so at the time. Again, we pause to remark these discrepancies were for the jury.

The testimony shows plaintiff remained on the cot in the office of defendant at the park until nine o'clock at night, when she was taken in an ambulance to Bell Memorial Hospital at Rosedale, Kansas, where she remained until June 24th. The X-ray taken at the hospital revealed a compressed fracture of the first lumbar vertebrae. At the hospital, her body was put in a plaster cast. When she left the hospital, she was taken to her home, where she was confined to her bed until the latter part of June. On the advice of her physician, thereafter she wore a steel brace, which she was still wearing at the time of the trial, June, 1931. Plaintiff's testimony also was that an X-ray, taken nine months after the injury complained of, showed the first lumbar vertebrae was still narrower than its adjacent fellows. Plaintiff's doctor stated this condition was permanent, producing nervousness. The testimony of plaintiff showed that prior to the injury in suit, her back and spine were normal and she was in good health. In respect to plaintiff's lumbar vertebrae, defendant introduced testimony showing she had six lumbar vertebrae, whereas in normal persons, there are but five, and that this accounted for the depressed appearance of one of the six. Again, there was presented a question for the jury.

Defendant's evidence, by way of photographs, not filed of record, showed the car in which plaintiff is alleged to have been injured, was of standard make, having the latest and usual protection for passengers, and that it was of the construction usually employed in such concessions. Defendant introduced an expert witness, one McGinnis, who testified that another method of protection in common use at the time of plaintiff's injury was a strap fastened to the sides of the car and extending over the laps of passengers. These straps are for the passenger to hold onto, as well as for safety in holding him in his seat; that the attendant does not ask the passenger about it, but simply snaps the strap fastening him in; that a similar coaster at Fairmount Park in Kansas City used such straps.

The petition alleges the formal matters relative to the parties, the construction and operation of the concession involved, the date and manner of the alleged accident on June 15, 1930, and that plaintiff had never ridden on said concession before and had no knowledge or notice of the unusually steep and dangerous condition thereof. The petition sets out in detail the injuries claimed by plaintiff and that such injuries are progressive and permanent; that prior to receiving said injuries, plaintiff was a strong, able-bodied woman, and that the said injuries were directly caused by the negligence of defendant, as follows:

"That it negligently failed to warn plaintiff of the unusually steep descent on the far side of said second loops, and of the danger thereof.

"That it negligently constructed and maintained the second loop of said track in such condition that the...