Hartman v. Tennessee State Fair Ass'n

• Decision Date: 04 March 1916
• Citation: 183 S.W. 733,134 Tenn. 149
• Parties: HARTMAN v. TENNESSEE STATE FAIR ASS'N ET AL.
• Court: Tennessee Supreme Court

183 S.W. 733

134 Tenn. 149

HARTMAN v. TENNESSEE STATE FAIR ASS'N ET AL.

Supreme Court of Tennessee.

March 4, 1916

Certiorari to Court of Civil Appeals.

Suit by Hattie Hartman against the Tennessee State Fair Association and others. There was a judgment for defendant C. T. Kennedy which was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Writ granted, judgment reversed and cause remanded for new trial.

W. S Lawrence and John T. Allen, both of Nashville, for plaintiff.

Samuel N. Harwood, of Nashville, for defendant Bogle.

Pendleton & De Witt, of Nashville, for defendants Kennedy and Tennessee State Fair Ass'n.

WILLIAMS J.

The suit was instituted by Hattie Hartman against the Tennessee State Fair Association, C. T. Kennedy, and others, to recover damages for personal injuries sustained by her in the collapse, because of negligence, of an amusement contrivance known as the "Ocean Wave," operated on the grounds of the association during the state fair in October, 1913.

The action, so far as it affected the Tennessee State Fair Association, was dismissed; but the case went to trial to test the liability of Kennedy. A motion of the latter for a peremptory instruction that there was no liability on his part was sustained by the trial judge, and his ruling was affirmed by the Court of Civil Appeals; but we are satisfied that this action of that court was an inadvertence, the details respecting which need not be recited. Miss Hartman has petitioned for a review on writ of certiorari.

It appears that a part of the fair grounds was set apart for various kinds of shows and amusements; that the amusement privilege on the entire grounds was let to Kennedy, who in turn sublet privileges to operate amusements to various persons. He granted to J. B. Davis the right to bring in and operate the Ocean Wave, which was a pleasure riding device, operated by an engine and in such way that, moving in a circular course, one side dipping down while the other side was raised, a wavelike effect was produced. The passengers were seated on a circular platform, about eight feet above the surface of the ground, and they ascended by climbing steps. Miss Hartman purchased a ticket, and, after taking a trip, she started to descend, and when she was approaching the edge of the platform for that purpose, the steps broke and the platform suddenly gave down. She fell to the ground, and other passengers fell on her. She became unconscious and suffered a considerable physical injury.

Kennedy, under his contract with Davis, received 30 per cent. of the gross receipts from the operation of this contrivance, and through his own agent sold the tickets, thus controlling the financial end of the particular enterprise. This ticket seller, on the inquiry of Miss Hartman, a lady of considerable avoirdupois, assured her of the safety of the Ocean Wave.

The other employés engaged about the machine and in its operation were those of Davis.

It is insisted by counsel of appellee that Kennedy did not have any proprietary interest in the machine, and had nothing to do with the manner of its operation, and that therefore, he is to be deemed the mere licensor or landlord of its operator, and under no duty to those who patronized the attraction, and that Davis was an independent contractor for whose negligence appellee is not to be held to respond.

Kennedy, as concessionary, held the sole right or exclusive privilege of bringing and operating amusements in the fairgrounds. We think it cannot be maintained, in any event, that his status as regards liability was higher than that of the usual fair association which, as the owner of exhibition grounds, grants a concession directly to the operator of such an amusement.

In recent years quite a body of law has grown up in relation to the liability for negligence in the operation of amusement apparatus. A number of these cases pass on the question of the liability of a fair association or an amusement park owner, charging a general fee for admission to the grounds, for the negligence of an independent contractor who furnishes attractions on the premises, and it is the general rule that such a defendant is, as the inviter of the patronage, under the obligation of exercising reasonable care to have and keep the premises and equipment reasonably safe for visitors. A defendant is not relieved of this duty by reason of the fact that he had leased a part of the premises or the equipment to an independent contractor. In one of the earlier cases ( Thompson v. Lowell, etc., Street R. Co., 170 Mass. 577, 49 N.E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323) it was said:

"The fact that the exhibition was provided and conducted by an independent contractor would not wholly relieve the defendant from responsibility, provided it was * * * a kind that it would probably cause injury to a spectator, unless due precautions were taken to guard against harm."

See also, in harmony with the above case, Richmond, etc., R. Co. v. Moore, 94 Va. 493, 27 S.E. 70, 37 L. R. A. 258; Turgeon v. Connecticut Co., 84 Conn. 541, 80 A. 714; Bernier v. Woodstock Agricultural Soc., 88 Conn. 558, 92 A. 160; Sebeck v. Plattdeutsche Volkfest Verein, 64 N. J. Law, 624, 46 A. 631, 50 L. R. A. 199, 81 Am. St. Rep. 512; 38 Cyc. 258.

A number of cases deal with the phase presented by the fact that the exhibitor, owner, and operator of such a device is a concessionary on a percentage basis, and they are in practical unanimity in holding that an association conducting a fair is liable to a patron for an injury due to a defect in the apparatus employed by a concessionary for the amusement of its patrons, where it thus receives as compensation for the concession a percentage of the sums paid by those who use the machine, when the defect could have been discovered in the exercise of reasonable care....