Ephremian v. Sholes., 8818.
| Decision Date | 09 April 1947 |
| Docket Number | No. 8818.,8818. |
| Citation | 52 A.2d 425 |
| Parties | EPHREMIAN v. SHOLES. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.
Action for trespass on the case by Helen Ephremian against Morris B. Sholes, doing business as Hillsgrove Country Club Roller Skating, for personal injuries sustained by plaintiff when she was run into and thrown to the floor by a woman who was skating in a fast and reckless manner. Verdict for plaintiff for $8,000 and a remittitur of all damages in excess of $7,000 to prevent a new trial, and the defendant brings exceptions.
Exceptions overruled and cause remitted to Superior Court for entry of judgment on the verdict as reduced by remittitur.
Charles A. Curran and Peter M. O'Reilly, both of Providence, for plaintiff.
Henry M. Boss, of Providence, for defendant.
This action of trespass on the case for negligence was tried to a jury in the superior court and resulted in a verdict for the plaintiff in the sum of $8,000. The defendant's motion for a new trial was denied on the condition that the plaintiff remit all damages in excess of $7,000. The plaintiff filed such remittitur and the defendant thereupon excepted to the denial of his motion. The case is before us on that exception and on exceptions to the denial of his motion for a directed verdict, to rulings on evidence, to portions of the charge, and to the amount of the damages.
The only count in plaintiff's declaration alleged in substance that the defendant negligently permitted fast and reckless skating in an aisle adjacent to but not a part of the skating area proper, and that, as the plaintiff was standing at a refreshment counter in that aisle, she was injured when she was run into and thrown to the floor by a woman who was skating in a fast and reckless manner. Under this declaration the plaintiff's proof sought to establish that the defendant either failed to provide reasonable supervision against fast skating in the aisle, or that the attendants charged with such supervision were negligent in the performance of their duty. The defendant introduced proof to rebut plaintiff's claim in both of these issues.
The building in which the defendant carried on a roller-skating business was 275 or 300 feet long by about 65 feet wide. The area set off for skating was enclosed by an iron railing, with openings at or close to each end of a main aisle about eight feet wide, hereinafter called the aisle, which ran along the entire length of the westerly side of the building. A skate room, lounge room, checkroom, soda bar and other accommodations were located on this aisle. Patrons entered the rink through a door which opened directly on the aisle, and admission tickets were collected at this door, usually by a special policeman in uniform.
Skaters used the aisle for various purposes, including the going to and from the skating area to the various facilities of the building and to the soda bar, which was located on the westerly side of the aisle and at the southerly end thereof. Signs reading ‘No fast skating’ were displayed along the aisle. When a specialty number was announced, those who did not participate therein left the skating area and congregated in the aisle until general skating was resumed.
The plaintiff testified that she, Dorothy E. French, and Willie Paul Frye, who will hereinafter be referred to as Dorothy and Willie, went to the rink about 9 p. m. on May 4, 1943; that, after Willie had bought the tickets and handed them to the policeman at the door, whom plaintiff identified as John H. Hallbauer, they skated for about one half hour, until a specialty number was announced, whereupon Willie suggested that they go to the soda bar for a drink, which they did; that Dorothy and Willie, carrying their drinks with them, moved over to the iron railing to watch the specialty number, while she, the plaintiff, remained seated on a stool at the soda bar with her back to the skating area; that, when she had finished her drink and was about to walk away from the soda bar, a woman skater ran into her and threw her to the floor, severely injuring her left leg. The woman skater disappeared in the crowd and the plaintiff was taken to the lounge room, from which she was removed to a hospital. Defendant's son testified that at the time of the accident, which he did not see, there were some eighty persons in the aisle.
Dorothy testified that she was near the iron railing with Willie; that, as she was looking at the specialty number, she heard him exclaim ‘Watch out’; and that, as she turned around at this exclamation, she saw the plaintiff on the floor close to the soda bar.
Willie, whose testimony was read from the transcript of a prior trial, corroborated the plaintiff and Dorothy, and further testified that he was about 12 feet away from the plaintiff as he was standing at the railing with Dorothy; that his position was such that the plaintiff was diagonally in his line of vision; and that, about 30 feet from him, he saw an attendant who was leaning against the wall of the aisle, smoking a cigarette and watching the specialty number that was then in progress.
Willie further testified that, with conditions as just described, he saw a woman, who was skating with a partner in the rink, break away from him and, skating very fast across that area, enter the northerly end of the aisle at the same speed; that, although she almost lost her balance when she was about to enter the aisle, she nevertheless continued to skate along the whole length of the aisle at the same speed , and that this skater ran into the plaintiff at about the same time. According to Willie, this woman skated in front of the attendant, who, although in a position to see her, made no effort to stop her. She disappeared during the commotion that followed the plaintiff's fall and, although described in general terms by Willie, she apparently remained unidentified by every one who testified in this case.
The defense maintained that there was no such accident near the soda bar as was described by the plaintiff and her witnesses. Relying upon a signed statement by a witness who repudiated it in part at the trial, the defendant claimed that the plaintiff was injured at one of the exits by tripping over a girl who had fallen while skating. In this situation and at defendant's request the jury was asked to make a special finding as to where the accident happened, and they found specially that the accident took place near the soda bar.
The evidence for the respective parties as to the supervision over skating in the aisle was in substance as follows. Willie, Dorothy and various other patrons, including a number of former employees of the defendant, testified that they saw considerable fast skating in the aisle on the evening of May 4, 1943, before the plaintiff was injured; and that Hallbauer, the policeman at the door, was the only person who supervised skating in the aisle on that evening. Over defendant's objection, some of these witnesses further testified that they saw fast skating in the aisle on various evenings prior to May 4, and that at such times, with the exception of a temporary appearance of the defendant or his son, the only supervision over skaters in the aisle was exercised by the policeman, who ordinarily remained at the entrance door to the rink.
John H. Hallbauer, the special officer on duty the evening of May 4, testified that he had seen fast skating in the aisle on that evening and on other evenings prior thereto; that, on nights when he was on duty, he alone supervised skating in the aisle, except when the defendant or his son appeared there for a short time; that the aisle was too big for one man to prevent fast skating, and that ordinarily all he could do was to stop fast skaters who passed near him while he was at the door.
Two former employees of the defendant testified that the attendants who supervised skating in the rink proper had nothing to do with skating in the aisle. One of these, Thomas W. Prendergast, further testified that when a specialty number was on the floor such attendants usually had ‘a chance to get a blow’, meaning an opportunity to smoke, ‘or have a soda.’
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