Filler v. Stenvick

• Decision Date: 31 January 1953
• Docket Number: No. 7338,7338
• Citation: 56 N.W.2d 798,79 N.D. 422
• Parties: FILLER v. STENVICK et al.
• Court: North Dakota Supreme Court

Page 798

56 N.W.2d 798

79 N.D. 422

FILLER v. STENVICK et al.

No. 7338.

Supreme Court of North Dakota.

Jan. 31, 1953.

Syllabus by the Court.

1. On an appeal from a judgment entered notwithstanding the verdict the only question for the appellate court is whether upon the record, as a whole, the party in whose favor such judgment was ordered and entered was, at the conclusion of the evidence entitled to a judgment on the merits as a matter of law.

2. An operator of a place of public amusement such as a skating rink is not an insurer of the safety of his patrons but he owes them that duty which, under the particular circumstances, is ordinary and reasonable care for their safety.

3. Before a patron of a skating rink can recover from the operator thereof damages resulting from a defect in the surface of the ice negligence on the part of the operator of said ice rink must be shown to be responsible for said defect and to be the proximate cause of the injury.

4. One who, knowing the necessary and obvious risks inherent in and incidental to the sport of skating which reasonable care by the proprietor cannot prevent, freely and voluntarily chooses to participate therein, cannot recover damages from the proprietor for injuries sustained on account of such inherent risks.

C. A. Waldron, Minot, for appellant.

R. H. Bradford and Harold H. Halstead, Minot, for respondents.

GRIMSON, Judge.

Plaintiff brings this suit by his guardian for injuries sustained while skating on an outdoor ice skating rink on the Mouse River in the City of Minot. Plaintiff alleges in his complaint that the defendants owned, controlled and managed said rink; that defendants invited crowds of young people and children to enter upon the premises and to purchase tickets entitling the holders thereof to skate upon said rink; that the plaintiff upon said invitation purchased a ticket for skating thereon; that the defendants negligently and carelessly permitted the ice on said rink to become unsafe and failed to properly flood and maintain said rink; that the defendants knew or should have known the condition of said rink; that while plaintiff was skating on said rink on Dec. 19, 1950, the blade of one of his skates became wedged in one of the cracks in the ice thereby throwing him, breaking his leg and causing him great pain and injury; that the negligence of the defendants was the proximate cause of plaintiff's injury.

The defendants who are husband and wife, filed separate answers in which they denied generally all of the allegations of the complaint except that the wife admits owning the property adjacent to the river skating rink. Management and control of the skating rink is specifically denied by both defendants. As an affirmative defense they allege contributory negligence on the part of the plaintiff.

The case was tried to a jury. At the close of the evidence separate motions for a dismissal of the action and for a directed verdict were made on behalf of each of the defendants on the ground that no cause of action had been proven against either defendant; that the evidence was insufficient to show that they or either of them were in control of the skating rink or responsible for the management thereof; that they had no knowledge of any defect in the ice and no means of ascertaining the presence thereof, and further, that there was contributory negligence on the part of the plaintiff. The motions were denied. The jury found for the plaintiff.

Thereafter, defendants made a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial on the grounds that the court erred in denying the motions for a directed verdict or dismissal as made at the end of the trial. The motion for judgment notwithstanding the verdict was granted and judgment rendered for the defendants. This appeal is from the judgment so entered. The plaintiff assigns as specification of error on appeal that the court erred in granting the defendants' motion for judgment notwithstanding the verdict. He also alleges numerous errors by the trial court in the exclusion of testimony intended to further show management and control of the premises by the defendants.

The order of the district court on a motion for judgment notwithstanding the verdict amounts to a delayed action on the defendants' motion for a directed verdict made at the conclusion of the trial and is based upon the evidence as it then stood. The sole question before this court on an appeal is whether or not the evidence at that time warranted the decision made. Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456, and cases cited.

The evidence shows that for some years a portion of the ice on the Mouse River, as it flows through the City of Minot, had been used in the winter as an open air skating rink, known as the 'Bissel Rink.' A warming house had been maintained on the bank of the river adjoining this skating rink. There the patrons could warm up, rent skates or have them sharpened. Confections also were there kept for sale. The ice in front of this warming house was kept free of snow and flooded. Artificial lights were provided. About five years previous to the accident the defendant, Elizabeth M. Stenvick, wife of the defendant, E. H. Stenvick, became the record owner of the property adjoining this river ice rink and on which the warming house stood. The maintenance of the rink and the warming house was continued. The plaintiff contends that the maintenance was by the defendants through their agents. The defendants claim they leased the warming house in the fall of 1950 to Glen Bissel, the man in charge, by a written lease which they introduced in evidence, and that they had nothing to do with the management of the warming house or the ice adjoining their property. The view we take of this case, however, makes it unnecessary to pass upon that issue or upon the rulings of the court on objection to the admission of some testimony in regard thereto.

The plaintiff was a boy 13 years old at the time of the accident. This was his fourth year of skating. He had skated over this ice on several occasions that fall prior to the accident. He had skated on the ice the evening of the accident and for a time engaged in a game called 'pom-pom-pull away.' Then he went into the warming house. On returning to the ice his skate became wedged in a crack in the ice causing him to fall and break his leg. The plaintiff does not contend that anything but this crack caused his accident and the evidence affirmatively shows that the crack was the sole cause thereof.

Before the plaintiff can recover damages for this accident there must be a showing of actionable negligence on the part of the proprietor of the rink, whoever he is, as the proximate cause of the accident.

'It is a general rule, of almost universal acceptance that an owner or proprietor of a theater or public amusement is bound to exercise a degree of ordinary and reasonable care for the safety and protection of his patrons--the degree of care that would be exercised by an ordinarily careful and prudent man in the same position and circumstances. Generally speaking, this obligation is met when the owner or proprietor makes the premises and instrumentalities as little dangerous as reasonable care can make them, having regard to the methods and contrivances necessarily used in conducting such a place, and, it has been said, to the activities and conduct of invitees using such place and instrumentalities in the manner which they are ordinarily used for the purposes for which they are designed and intended. Such degree of care is measured by the conduct of the average man, not that of the cautious man of more than average prudence.' 52 Am.Jur., Theaters, Shows, Exhibitions, etc., Sec. 47, p. 291.

'Skating rinks are not ordinarily regarded as inherently dangerous or of such unusual nature as to impose on the owner or proprietor of such amusements an unusual degree of care.' 52 Am.Jur., Theaters, Shows, and Exhibitions, Sec. 63, p. 307.

In Oberheim v. Pennsylvania Sports and Enterprises, 358 Pa. 62, 55 A.2d 766, 768, it is said that:

'As the operator of the rink for paid admissions, the defendant company was under a legal duty to keep the premises in a reasonably safe and suitable condition so that those coming upon them at the defendant's invitation, express or implied, would not be unnecessarily or unreasonably exposed to danger: Robb v. Niles-Rement-Pond Co. Inc., 269 Pa. 298, 300, 112 A....