Demarest v. Palisades Realty & Amusement Co.

• Decision Date: 30 January 1925
• Docket Number: No. 70.,70.
• Citation: 127 A. 536
• Parties: DEMAREST et al. v. PALISADES REALTY & AMUSEMENT CO.
• Court: New Jersey Supreme Court

127 A. 536

DEMAREST et al.

v. PALISADES REALTY & AMUSEMENT CO.

No. 70.

Court of Errors and Appeals of New Jersey.

Jan. 30, 1925.

(Syllabus by the Court.)

Gummere, C. J., and Black, Katzenbach, and Clark, JJ., dissenting.

Appeal from Supreme Court.

Action by Barbara S. Demarest and another against the Palisades Realty & Amusement Company. Prom judgment for defendant, plaintiffs appeal. Reversed, and new trial granted.

Wayne Dumont, of Paterson, for appellants.

Michael Dunn, Arthur C. Dunn, and Michael Murphy, all of Paterson, for respondent.

WALKER, Ch. Plaintiffsappellants, husband and wife, brought this action against the defendant for injuries caused to the wife, Barbara S. Demarest, by reason of the alleged negligence of defendant's agents and servants in operating an amusement device maintained by it in a park which it owned and controlled, while she was using and enjoying the device; and the husband's action was for his outlay of money for the treatment of his wife for her injuries and for loss of her companionship during disability.

Among the devices in the park was one known as a "sleigh ride," operated on an inclined plane, upon which is maintained a track over which cars known as sleighs are run for the vise of persons desiring to take a ride thereon. They are shaped somewhat like a sleigh, and each is adapted for the accommodation of two persons who are seated on the floor, one behind the other, the one in front being provided with a leather belt strapped across in front of the rider's body to prevent expulsion from the car or sleigh in case of a sudden stop. The sides are raised sufficiently to prevent the riders from falling off. When two persons are thus seated in the car or sleigh, it is propelled up to the top of the incline plane, and, after making a short turn, it descends with its occupants on the track provided for it on a long and steep grade, at a rapidly accelerated speed toward the bottom, until it reaches a certain place, where a servant is stationed who has charge of a contrivance in the nature of a brake, by which the speed of the car or sleigh can be gradually decreased until it is brought to a stop, so that the occupants can safely alight from it.

The plaintiff-appellant Prank B. Demarest went to the defendant's amusement park with his wife and children and several other people on July 20, 1922, his wife having bought a ticket or tickets of admission. Three or four days previously thereto he received a free ticket or pass for four persons for the gratuitous enjoyment of certain amusement features in the park (which included admission to the park). This he got from a man by the name of Quinn, who appears to have frequently gotten passes for different people. Quinn was a friend of his and of the amusement company. The pass was not issued to any particular person or persons, but had the name "J. Quinn" written on the back of it, which apparently, showed that it was issued for or on account of Mr. Quinn; that he solicited it. On the face of it were the words, "Complimentary: Pass four (4) to grounds and following attractions," among others, "sleigh ride." The defendant admits the possession of the pass by the plaintiff-appellant, Frank B. Demarest, and its presentation to and acceptance by its agents.

Mr. Demarest with his wife and a woman in their party went to the device called "sleigh ride," and an attendant put her on the floor of the car and her woman friend directly behind her. Mr. Demarest observed them on the ride, and as the sleigh in which they were was coming down the incline at a very great rate of speed, and when near the brake handles, noticed an attendant talking to a man who operated the brake, who looked around, and, seeing the car thus approaching, made four or five jumps to the brake and grabbed the handle, stopping the car suddenly, and the two women were, apparently by this action, thrown on their backs, rendering Mrs. Demarest unconscious, breaking three ribs, and seriously injuring her.

At the trial of the case, after the presentation of plaintiffs-appellants' evidence, defendant moved for a nonsuit on the ground that the plaintiff-appellant Barbara S. Demarest was a licensee on the premises of defendant and not an invitee, and therefore the defendant was not liable to her for the negligence, if any, of its servants and agents; and this upon the theory that she rode upon a free pass instead of a paid ticket to the device.

The court, upon the defendant's motion, granted the nonsuit against the plaintiffs, and from the judgment entered thereon they appeal here.

Under the doctrine enunciated for this court by Mr. Justice Depue, in Phillips v. Library Co., 55 N. J. Law, 307, 27 A. 478, we think the plaintiff Mrs. Demarest was not a licensee, but an invitee upon the premises and the ride. It is there laid down that the owner or occupier of lands who by invitation, express or implied, induced persons to come upon the premises, is under the duty to exercise ordinary care to render the premises reasonably safe for such purpose, or at least to abstain from any act that will make the entry upon or use of the premises dangerous; that the gist of liability consists in the fact that the person injured did not act merely on motives of his own, to which no sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used. Now, Mrs. Demarest was led to enter upon the "sleigh ride" by the "complimentary" pass and by the acts and conduct of the agent of the owner or occupier (the defendant), and to believe that the sleigh ride was intended to be used by her in the manner in which it was used, and that it was safe for her to use it. Phillips v. Library Company has been repeatedly followed and applied by the courts of this state, one of the latest cases being Gibeson v. Skidmore, in this court, 122 A. 747, wherein we reiterated the doctrine of that case.

The situation of the injured plaintiff is quite analogous to that of a person traveling upon a railroad train on a free pass, in which case it has been held in this state that the defendant company may exculpate itself from liability to a passenger who receives knowingly a free ticket with an indorsement upon it of a contract that in consideration of a free passage he will assume the risk of injuries to his person from the negligence of the servants of the railroad company. In Kinney v. Central R. Co., 32 N. J. Law, 407, 90 Am. Dec. 675, Chief Justice Beasley in the Supreme Court, said at page 412:

"The transaction is virtually this: The carrier says to the passenger, 1 have employed careful and skillful men to manage my locomotive and cars, but they are human, and they may fail in their duty to your danger.' The passenger says, 'In consideration of a free passage, I will run that risk. The bargain is struck on these grounds, and I am clear that it would be a great refinement to impeach it as being prejudicial to public interests.'"

This case was affirmed, 34 N. J. Law, 513, 3 Am. Rep. 265, wherein Mr. Justice Van Syckel, writing the opinion, says at page 514:

That "the single question to be determined is whether the express agreement exempts the company from responsibility for the neglect of its agents. The contract is clear in its expression, made between competent parties, and unless it contravenes some settled rule of law, or is contrary to public policy, it fully dispenses the company from liability."

And at page 516:

"Why should the passenger who solicits a free pass be permitted to escape the liability to loss which he voluntarily assumes in order to secure the accommodation? It is certainly a breach of good faith in the passenger, to attempt to fix the carrier with responsibility in such case."

The Supreme Court in Trenton Pass. Ry. Co. v. Guarantors' Liability Co., 60 N. J. Law, 246, 37 A. 609, 612, 44...