Dusckiewicz v. Carter.
| Decision Date | 06 May 1947 |
| Docket Number | No. 1066.,1066. |
| Citation | 52 A.2d 788 |
| Parties | DUSCKIEWICZ v. CARTER. |
| Court | Vermont Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Rutland County Court; Hughes, Presiding Judge.
Tort action for personal injuries by B. A. Dusckiewicz against Jack Carter, doing business as Jack Carter Enterprises. Verdict and judgment for plaintiff, and both parties bring exceptions.
Judgment reversed, plaintiff's motion for new trial granted, and cause remanded.
Asa S. Bloomer, of Rutland, for plaintiff.
Ryan, Smith & Carbine, of Rutland, for defendant.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
This is a tort action. The complaint is based upon the alleged negligence of the defendant in conducting a wrestling match, resulting in injury to the plaintiff, a spectator at that contest. The plaintiff had a verdict and judgment below in the sum of $150 damages and the case is here on exceptions by each of the parties. The plaintiff claims that the court erred in refusing to grant his motion to set aside the verdict upon the grounds that it is grossly inadequate in view of all the evidence. The defendant claims error committed by the court in refusing to grant his motion for a directed verdict in his favor made at the close of all the evidence.
We first consider the defendant's motion for a directed verdict. Material to this issue the jury could reasonably find the following facts from the evidence, viewed in the light most favorable to the plaintiff.
The defendant does business under the name ‘Jack Carter Enterprises,’ operating out of the city of Burlington where he has his headquarters. As one of his enterprises, Carter put on a show at the armory in Rutland on the evening of June 6, 1945. The principal feature of his show was a wrestling match. Through a booking office in Montreal, Carter engaged as contestants in this match two men skilled in the art of wrestling, one by the name of Savoli and the other's name is Ryan. Ryan had performed for Cater three times previous to this engagement and Savoli, once. At some time before June 6, 1945, Carter went to Rutland and made the necessary arrangements for putting on this show. Compensation for each wrestler, as arranged by Carter through the booking office, was a guaranty that each should receive a certain named flat sum with a percentage option. That is, if the agreed percentage of the gate receipts amounted to more than the sum guaranteed then the wrestler concerned could elect to receive such percentage in lieu of the flat sum named in the guaranty. Compensation paid by Cater did not include payment of hotel bills or other expenses, in addition to payment as above stated. On the evening of the show Carter saw the wrestlers, made sure that they were ready for the contest but gave them no instructions as to the manner of their behavior during the contest. Savoli then weighed about 230 lbs. and Ryan about 225 lbs.
A ‘ring’ was erected in the armory as the arena where the contest was staged. This arena platform was at an elevation of about four feet from the floor and was enclosed by three ropes extending around the outside of it. Carter inspected this ‘ring’ after it had been set up. Folding chairs fastened together in sets of three or four were provided as seats for spectators. The four or five rows nearest the ‘ring’ were called ‘ringside seats' and sold for $1.50 each and the others were general admission seats and were cheaper. The chairs were not fastened to the floor.
The plaintiff resides in West Rutland and at the time in question was running a barber shop there. The owner of this shop was in service of the United States armed forces and it was agreed between him and the plaintiff that when the owner returned he was to take over this shop. The owner returned sometime in October or December of 1945 and then took over that business. The plaintiff made about seventy-five dollars per week from his barbering business and he also got about $20 per week as his part of the proceeds of a licensed pin ball machine then in the shop. As stated by the plaintiff in cross examination, he was ‘a wrestling fan, rather.’ He invited two of his friends to attend this match with him and at the armory entrance he purchased three tickets for ring side seats. These seats were in the front row nearest the ring. A person in the employ of the defendant ushered them to their seats which were numbered to correspond with numbers on their tickets. The plaintiff paid $1.50 each for the seats.
After the match had been going on for some time, one of the wrestlers threw the other through the ropes in the direction where the plaintiff was seated. When the plaintiff saw the wrestler coming he put up his right hand to protect himself from the oncoming wrestler landing on him and as a result he received a sprained hand and wrist. It is for this injury and resulting alleged damages that the plaintiff seeks to recover.
The defendant based his motion for a directed verdict on grounds which may be briefly stated as follows. The plaintiff assumed the risk of the danger which resulted in his alleged injury; the wrestlers were independent contractors and not employees of the defendant and the evidence does not show any negligence on the part of the defendant.
As to the question of assumption of risks, the evidence shows that the plaintiff was a business visitor of the defendant at the time and place in question. He had paid $1.50 for his seat and was occupying it for the purpose as intended by the defendant. Wool v. Larner, 112 Vt. 431, 437, 26 A.2d 89. An invitee at a place of amusement ordinarily assumes the risk of an obvious danger or of one that is a matter of common knowledge; conversely, such a person does not assume the risk of a hidden or undisclosed danger, not of common knowledge, in the absence of warning or personal knowledge. James v. Rhode Island Auditorium, Inc., 60 R.I. 405, 199 A. 293, 295, and cases cited. That the danger which resulted in the plaintiff's injury was not an obvious danger is selfevident. However, the defendant contends that the plaintiff must be taken to have assumed the risks of the danger which resulted in his injury, because he had personal knowledge of it and also because such danger is a matter of common knowledge, and he cites several baseball cases in support of this contention. These cases hold that an invitee, familiar with the game of baseball, buying a seat in a part of the stands not protected by screens, who is hit by a batted ball during the progress of a ball game proceeding in a normal manner, can not recover, because it is a matter of common knowledge that chance is an important...
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Benoit v. Marvin, 1841
...that a patron of a roller-skating rink assumes the necessary and obvious risks incidental to the recreation, citing Dusckiewicz v. Carter, 115 Vt. 122, 125, 52 A.2d 788. But this was not an ordinary risk. It was an extraordinary one, and therefore, not assumed by the plaintiff unless she kn......
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Wilford v. Salvucci, 381
...is reviewable here only when abuse of discretion is made to appear. Goldberg v. Gintoff, 112 Vt. 43, 45, 20 A.2d 114; Dusckiewicz v. Carter, 115 Vt. 122, 126, 52 A.2d 788. If the motion should have been granted on either the first or third ground we need give the other grounds no further at......
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