Daniel v. S-Co Corp.

• Decision Date: 12 November 1963
• Docket Number: No. 51085,S-CO,51085
• Citation: 255 Iowa 869,8 A.L.R.3d 522,124 N.W.2d 522
• Parties: , 8 A.L.R.3d 1418 Ernest Harold DANIEL, Appellee, v.CORPORATION, a corporation d/b/a 'Jumpin Gyminy Trampoline Center', Appellant.
• Court: Iowa Supreme Court

Page 522

124 N.W.2d 522

255 Iowa 869, 8 A.L.R.3d 1418

Ernest Harold DANIEL, Appellee, v. S-CO CORPORATION, a corporation d/b/a 'Jumpin Gyminy Trampoline Center', Appellant.

No. 51085.

Supreme Court of Iowa.

Nov. 12, 1963.

Seymore M. Raben, Davenport, for appellant.

Doerr, Dower and Rehling, Davenport, for appellee.

PETERSON, Justice.

Plaintiff brought this action at law to recover damages for personal injury to himself which resulted from his use of a device known as a 'trampoline' on July 11, 1960. Defendant was the owner and operator of a commercial establishment featuring trampolines for use by the public. The case was submitted to the jury and a verdict was returned in favor of plaintiff in the amount of $6500. From this verdict and the judgment thereon, defendant appeals.

Appellant raises two matters in which it claims the court erred: 1. Whether or not there is sufficient evidence in the record to show any negligence on the part of defendant. 2. Whether or not any warning, instruction or supervision by defendant to plaintiff was necessary and was the failure to give same, negligence on the part of defendant.

I. Plaintiff is 35 years of age, a college graduate and is engaged in the work of certified public accounting. On July 11, 1960, at about 8 o'clock P.M., he took his little girl, 4 years of age, to defendant's trampoline center in the city of Davenport. It was still daylight. The center involved in this case is one of five such centers maintained by defendant in Davenport.

He paid the cashier in her office for the entrance fee and walked with his little girl out upon the area in which was located a large number of trampolines. Exhibit '2', shown on page 523, is a photograph of one of the trampolines. Plaintiff's Exhibit 2

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the north, east, and south walls of the fence surrounding the trampoline area appear large notices as to 'RULES FOR YOUR SAFETY AND PLEASURE.' Two such notices also appear in the office where plaintiff purchased his tickets. The notices are in accordance with Exhibit 'A' shown on page 524.

Defendant's Exhibit A

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At first plaintiff's little girl stepped upon a trampoline and jumped. Being very light she never jumped very high. Plaintiff states perhaps to the extent of one foot. She took off her shoes before stepping upon the trampoline.

Plaintiff then took off his shoes and stepped on one of the trampolines and started to jump. He states he jumped about five times. After so stating his testimony was as follows:

'Q. Then what happened? A. Well, all I can truthfully remember of it is starting to bounce and the next thing I knew I was waking up over on the side of the pit, lying, I don't remember whether on my back or my stomach. There were two young fellows there that came over at that point. One said something about, 'Your Uncle should have blankets here for accident cases like this.'' * * *

II. The above quoted statement constitutes plaintiff's complete evidence as to the incident of his fall. In his cross-examination he made approximately the same statement. The evidence of the two young men, testifying for defendant, to whom he refers in his statement, also appears in the record. Such evidence does not enlighten us as to what happened concerning plaintiff's fall.

The boys testified they saw plaintiff and his little girl come in to the amusement center. They saw the little girl jump on one of the trampolines. They then saw Mr. Daniel take off his shoes and step upon the mat on another trampoline and saw him jump a few times. They did not pay any further attention to him. They said there had been between 2500 and 3000 people through the amusement center that season and they paid no particular attention to any individual person. Their attention was first attracted when they heard a fall.

Mr. Richards, the first witness stated: 'The first time I realized that Mr. Daniel had any difficulty is when I saw him laying down. I heard a bang and heard the springs snap. That is when I turned around and saw him laying there. I went over to the man and he was laying on the ground kind of on his side. I rolled him over and took my sweat shirt off and put it under his head so his head wouldn't be laying on anything hard. I told Rich (the other witness) to get me a wet cloth because he was perspiring and I wiped the perspiration off him and told Mrs. Lindbloom to call the ambulance.

'After the accident, I looked at the trampoline and Rich went over and bounced on it. There was nothing wrong with it except the springs stretched a little, but that is only natural. There was nothing else wrong with it.' The other young man witness, Mr. Geifman, testified to the same effect.

On the above state of the record we can only speculate, conjecture, and wonder as to what happened to Mr. Daniel. There is nothing in his testimony, nor in the statement by the young men working in the amusement area, which indicates any negligence on the part of defendant. While the trial court instructed the jury as hereafter stated, as far as the evidence was concerned the jury could only speculate and conjecture as to what happened. It was impossible, from the state of the record, for the jury to have before it any tangible facts upon which to decide whether or not defendant was negligent.

Appellee and his counsel are silent as to the facts concerning how plaintiff was injured. In other words, they pay little attention to the internal conditions of the trampoline, in connection with plaintiff's fall.

They base their case in their petition, and the trial court based it, upon external conditions as far as plaintiff's fall and injury are concerned.

In his petition plaintiff alleges three itmes of negligence upon which he bases his claim. 1. Failing to warn plaintiff as to the inherent dangers in the device. 2. Failing to provide trained supervisory personnel to instruct and protect plaintiff. 3. Akin to No. 2 is the further claim that defendant permitted plaintiff, an inexperienced person, to use the device without instruction or supervision.

III. When the court submitted the case to the jury it restricted the matter of specifications of negligence to two parts: 1. In failing to warn plaintiff of the inherent danger in the use of the trampoline. 2. In permitting plaintiff, an inexperienced person, to use said device without instruction or supervision by defendant.

Defendant did, in fact, warn plaintiff. Five sets of heavily printed instructions were placed either upon the fence or in the office of the amusement center. The instructions were in accordance with defendant's Exhibit 'A', heretofore shown. All plaintiff had to do in order to be fully informed was to read them. He was an especially intelligent college educated man of 35 years of age. There was no hidden danger involved in the trampoline. It was an athletic exercise of jumping upon the mat. It is true it was plaintiff's first experience in this type of amusement. The complete mechanism was in full view of plaintiff and the instructions were clear and definite. In the face of the record and the circumstances there was no question to be submitted to the jury.

As far as instruction and supervision is concerned the posted notice stated in plain language that if plaintiff desired instruction he could ask for it. He testified...