Frye v. Omaha & Council Bluffs Street Railway Company

Decision Date23 June 1921
Docket Number21504
Citation183 N.W. 567,106 Neb. 333
PartiesLUTHER B. FRYE, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

John O Yeiser and John O. Yeiser, Jr., for appellant.

John L Webster, contra.

Heard before LETTON, DAY, DEAN and ROSE, JJ. MORRISSEY, C. J., not sitting. ROSE, J., dissents.

OPINION

DEAN, J.

Plaintiff sued to recover damages for personal injuries alleged to have been sustained from a fall while he was skating on roller skates furnished by defendant at a roller skating rink that it maintained at Lake Manawa. Defendant filed a general denial. Subsequently it obtained leave to withdraw its answer and to demur ore tenus. The demurrer was sustained; the suit was dismissed, and plaintiff appealed.

Plaintiff alleges generally that defendant, "for the purpose of stimulating traffic over the street railway lines," and for gain, maintains a pleasure resort at Manawa; that it invited the public to the attractions there maintained by it, and that he, on July 25, 1919, "under the usual guaranties and obligations of hospitality and good treatment of servants and safe appliance and equipment, * * * accepted the said public invitation of defendant, " and entered defendant's roller skating rink at Manawa, "and paid twenty-five (0.25) cents for the use of the rink and a pair of roller skates which defendant adjusted loosely, and plaintiff returned from the skating floor to complain of looseness. Whereupon defendant corporation, through its agents and servants in charge, used two straps over the toes, but that said straps negligently used by defendant were not suitable and proper toe straps, but were long straps made for some other purpose, and defendant knew or should have known of their unfitness and dangerous length, but nevertheless negligently adjusted and tucked in said long straps without informing plaintiff, who did not know of said improper appliances, the ends of which were hidden and latent in defect, but relied upon defendant; that plaintiff, relying upon the appliances and services of defendant, resumed skating and after from five to fifteen minutes skating said strap came loose from said long surplus end of useless leather, and said end bent back under the roller of one of the skates, suddenly stopping the skate and throwing plaintiff to the floor." It is then alleged generally that, as a result of the fall, plaintiff suffered an injury to his right arm that he says is permanent. He avers that he is 38, and that he was in good health before the accident.

It plainly appears from the petition that plaintiff discovered when first he went upon the skating floor, that the skates were loosely adjusted and "he returned from the skating floor to complain of looseness." So that his attention was forcibly drawn to a situation that demanded a remedy, and straps were used for this purpose. There is nothing intricate about the mechanism of a leather strap and buckle. A more simple appliance could hardly be imagined. A person with even a low degree of intelligence knows the use to which straps and buckles are put. It follows that plaintiff should have used the care of a reasonably prudent person to see to it that the straps were properly applied and adjusted before he resumed skating. He did not do so; hence, the accident. Plaintiff was not a child but a mature man of 38 years. Whether he was a novice or an expert skater does not appear. But he could skate. He complains of adjustment. A man of his years, even though a skater of only ordinary skill, should himself have known, in the exercise of reasonable regard for his own safety, whether the straps were properly adjusted, and, if they were not, he should have made complaint at the time, or he should have made the proper adjustment himself. Plaintiff pleaded that the straps used by defendan...

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31 cases
  • Bergstresser v. Minnesota Amusement Co.
    • United States
    • Supreme Court of South Dakota
    • August 5, 1942
    ......113,. 205 P. 179, 22 A.L.R. 607; Frye v. Omaha & C. B. Street. R. Co., 106 Neb. 333, ... of the Saenger Company to fail to light the floor at the. point where ......
  • Bergstresser v. Minn. Amuse. Co.
    • United States
    • Supreme Court of South Dakota
    • August 5, 1942
    ...41, 189 A. 886. See, also, Tulsa Entertainment Co. v. Greenlees, 85 Okl. 113, 205 P. 179, 22 ALR 607; Frye v. Omaha & C. B. Street R. Co., 106 Neb. 333, 183 NW 567, 22 ALR 610; Emmons v.Virginia, 152 Minn. 295, 188 NW 561, 29 ALR 863; Demarest v. Palisades Realty & A. Co., 101 N. J. L. 66, ......
  • Birmingham Amusement Co. v. Norris
    • United States
    • Supreme Court of Alabama
    • April 28, 1927
    ...... the Birmingham Amusement Company. From a judgment for. plaintiff, defendant ...See, also, in the note to. Frye v. Omaha & C.B. St. R. Co., 106 Neb. 333, 183. ......
  • Humbyrd v. Spurlock, 7923
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1961
    ...there are few which involve the contributory negligence of the skater in the use of skating equipment. In Frye v. Omaha & C. B. St. R. Co., 106 Neb. 333, 183 N.W. 567, 22 A.L.R. 607, a skater who had been given and was using a too-long toe strap, the end of which caught under the skate, was......
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