Firszt v. Capitol Park Realty Co.

• Decision Date: 08 March 1923
• Citation: 120 A. 300,98 Conn. 627
• Court: Connecticut Supreme Court
• Parties: FIRSZT v. CAPITOL PARK REALTY CO.

120 A. 300

98 Conn. 627

FIRSZT v. CAPITOL PARK REALTY CO.

Supreme Court of Errors of Connecticut.

March 8, 1923

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Action by Josephine Firszt against the Capitol Park Realty Company to recover damages for the alleged negligence of defendant. Verdict for the plaintiff to recover $10,000. Defendant moved to set aside this verdict as against the weight of evidence and, from a denial of the motion, and from the judgment entered thereon, defendant appeals. Error.

Alexander W. Creedon and John A. Danaher, both of Hartford, for appellant.

Charles S. Hamilton, of New Haven, and Morris M. Wilder, of Meriden, for appellee.

KEELER, J.

It appears from the facts admitted by the pleadings that the defendant on June 5, 1921, owned and operated an amusement park in the city of Hartford, and invited the public to visit the same and patronize various forms of amusement therein provided. Among the amusements provided was a device known as an " aeroplane swing," consisting of cars made to resemble aeroplanes, each of which cars accommodated four persons. Each person riding in one of said cars was charged 10 cents--government tax included. Each car was suspended by four steel cables, each fastened at one end to each of the four corners of each swing respectively and at the other end to steel supports or arms extending out from the top of a steel tower about 60 feet high. The several steel supports or arms at the top of the tower were caused by machinery to revolve about in a circle, and this motion in turn, by reason of the cables, caused the several cars or swings to revolve, and, as the machinery gathered speed, the cars would swing out from and around the base of said tower.

The plaintiff offered evidence to prove, and the jury might reasonably have found, that when the boats were in their normal or level condition, and not in operation, they hung by force of gravity perpendicularly from the end of the arms, and were then about 18 inches from the ground, so that a drop of 18 inches of either end of a boat would bring it in contact with the ground. This swing was operated by causing a shaft in the central column to revolve by means of an electric motor. When it revolved, the boats, by centrifugal force, were caused to swing outward away from the central column and at a considerable angle thereto. This, by reason of centrifugal force, and also the atmospheric resistance, caused a considerable strain upon the supporting cables and arms and the supporting rod; and if the boats were operated, as they frequently were, when there was a strong wind blowing, the strain was very much increased and irregular. The method of attaching the outer end of the suspending arm to the upper part of the inner column by nothing but a steel rod 1 1/8 inches in diameter was an insecure, unsafe, and dangerous method, as the entire strain came on this rod alone, and, if it had any inherent defects in it, it might break at any time and allow the boats or any one of them to come down so far as to strike the ground and throw the occupants out. At a moderate expense the arms might have been suspended by steel cables of the same size, 1 1/8 inches in diameter, running from the outer end of the arm to the upper collar on the central column. Such a cable would have given twice the tensile strength of the rod actually used; also any defect or threatened breakage would be more easily detected by inspection.

On the said day, at about 5 o'clock in the afternoon, by daylight saving time, the plaintiff paid the price of admission for herself and her young child, and they entered one of said boats or cars. After they took their seats the apparatus was started by the defendant's agent and servant, and the boats were set in motion, revolving around the central tower. Centrifugal force caused the boats to swing outward and brought them about 15 feet from the ground when the swing was operating at full speed, which was at the rate of about 25 miles per hour. The boats of the swing were only about half loaded with people at this time.

Just as the boats were slowing their speed, the rod, holding up the arm to which the cables or wires from the forward part of the boat in which the plaintiff and her child were seated, parted and gave way, and the arm dropped downward, and, as the speed of the machine lessened and the boat swung in towards the central column by force of gravity, the forward part of the boat in which the plaintiff and her child were seated dropped down to a considerable angle, and finally struck the ground, thereby throwing the plaintiff and her child out.

The plaintiff struck upon the top of her head and her body fell under the boat, which turned over so that a part of it struck the plaintiff on the back near the upper part of the pelvis, as she was lying on the ground, and thereby the injuries from which she was suffering were inflicted.

The jury might reasonably have found from the claimed proof of the defendant substantially as follows: That the apparatus was driven by electric power applied through the steel shaft to a collar at the lower end of the uppermost part of the shaft, which part revolved, carrying the steel arms attached thereto, to the outer end of which arms were attached the cables from which the cars were hung. The revolution of these arms caused the cars to revolve. Each successive application of power applied to the revolving superstructure of the tower accelerated its motion and caused the cars to swing out from the base of the tower. When the cars were revolving at full speed, they described a radius of revolution of about 50 feet from the base of the tower and were then about 15 feet from the ground. When the power was turned off, the boats descended to their normal condition by the force of gravitation. If there had been no defects in the swing, it had a margin of safety of 34 4/10 when carrying its full load of 24 passengers, when revolving with a radius of 50 feet. The tensile strength of the rod, which extended from the crown of the tower to the end of the arm which lowered (which was the rod that broke), if sound, would be 45,000 pounds. The swing was of the same type and construction as is generally found in amusement parks operated by intelligent, prudent persons.

In the spring of 1921, prior to the opening of the park, the superstructure was examined by a competent mechanical engineer, who visually examined it and applied thereto a tapping test, well recognized in the engineering profession as used to detect loose connections, or defects extending inward from the surface, or outward from the interior of the rod to the surface. About three weeks prior to June 5, the device was subjected to a loading test when bags were filled with sand and cement and were placed in the boats, approximating in weight 1 1/2 to 2 times the average load of passengers which the boats could carry, and then the boats or cars were revolved at high speed for 20 or 25 minutes.

This test was the only practical test reasonably to be expected and generally adopted by intelligent and prudent persons engaged in this business, and the only test open to application by the highest technical skill of the present day, for the purpose of discovering any latent defect, and the reasonable frequency of such tests was once every three months.

Upon each day before the opening of this park and upon June 5, 1921, the boats were loaded with employees of the park and revolved at full speed for a period of time longer than the ride afforded to the general public. Each day the operator of the swing inspected the device by climbing to the top and making a visual inspection and examination thereof. These tests were all and the only tests reasonably to be expected and generally adopted by intelligent and prudent persons engaged in this business, and were all and the only tests open to application by the highest technical skill of the present day.

The dropping of the arm was caused by the breaking of the steel rod which extended from its end to the crown of the structure, and this rod broke at a place about four or five inches from that end of the rod which was attached to the end of the arm. The broken surface of the rod showed an irregularly shaped dark spot and around this and extending to the surface of the rod was a bright metallic surface. This defect was an inherent defect in the structure of the rod, hidden, concealed, and in no way visible upon examination. It was wholly within the structure of the steel and could not be detected except upon examination by metallurgists in a laboratory, which type of examination cannot be reasonably expected to be exercised by intelligent and prudent men operating such a device in an amusement park.

Of the various errors assigned in the reasons of appeal, only those relating to the charge of the court were pursued in brief or argument. The first claimed error is that the court, in charging the jury, imposed upon the defendant a higher degree or variety of care and duty than is imposed by law; that is, that this care was the same as is required from a carrier of passengers for hire, and not reasonable care in proportion to the danger incurred, which latter care is the one legally imposed. Upon the question of care required, the court charged as follows:

" The standard of care which it was encumbent upon the defendant to exercise was not that care which we have discussed so often in other cases we have had before us, the care of an ordinarily prudent person situated as the particular individual, whose activities we were inquiring into, was there situated, but it is a higher degree of care and, that I may not err in stating to you correctly the standard of

...