Frye v. Omaha & Council Bluffs Street Railway Company
Decision Date | 23 June 1921 |
Docket Number | 21504 |
Citation | 183 N.W. 567,106 Neb. 333 |
Parties | LUTHER B. FRYE, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE |
Court | Nebraska 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.
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, 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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