Hawk v. Wil-Mar, Inc.

• Decision Date: 18 June 1956
• Docket Number: WIL-MA,I,No. 199,199
• Citation: 210 Md. 364,123 A.2d 328
• Court: Maryland Court of Appeals
• Parties: Pauline HAWK, Infant, by Opal Hawk, Mother, Next Friend, v.nc., etc.

Page 364

210 Md. 364

123 A.2d 328

Pauline HAWK, Infant, by Opal Hawk, Mother, Next Friend, v. WIL-MAR, Inc., etc.

No. 199.

Court of Appeals of Maryland.

June 18, 1956.

Thomas Ward and Paul F. Due, Baltimore, for appellant.

Thomas G. Andrew, Baltimore (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

From a judgment for the defendant, entered when the plaintiff closed in a personal injury case, the plaintiff appeals, assigning as error the directing of the verdict and refusal to compel production before trial of the statement of a witness.

In July, 1951, appellant Pauline Hawk, then fifteen years old, and another girl went to Tolchester. After lunch they patronized the amusements, including the roller coaster. Then, the day being hot and sunny, they went to the beach where they stayed until about seven o'clock. After supper the two girls went on the roller coaster with two boys they had met on the beach. The girls sat on the front seat of the roller coaster car and the boys sat behind them. The roller coaster at Tolchester is called the Whirlpool Dip and it operates in the customary way. The cars are carried to the top by a moving chain and then turned over to the force of gravity, going down a steep grade and then up an incline, the top of which is enough lower than the preceding peak to permit the cars to continue, and so on. There are several downgrades and upgrades with curves in between. As one witness described it: 'The roller coaster went up the hill and around in a circle twice and then went down the hill, and at the bottom of the hill it hit a dip and it throws your body back towards the back of the car and goes up the hill and makes a sharp turn to the left, throwing your body to the right.' The appellant testified that when the car hit the dip, she was thrown back and she remembers nothing after that. The other witnesses testified that after the car went around the curve to the left, they noticed appellant flying from the car. She landed on a shack below, her head going partially through the roof, and was seriously injured. Although the appellant herself had not noticed it, there was testimony from her mother, who saw the car the next day, and from the girl who was riding with her, that there was a slit or tear in the upholstery in the back of the seat in which the appellant was riding, directly behind her, and that you could see wood through the slit in the material.

The appellant's theory of liability is that the car was permitted to be used with the slit or tear in the upholstery so that the function of the upholstery of protecting riders from jerks and jolts was defeated, that when the appellant was thrown back at the bottom of the incline, she struck her head on the unprotected wood and was knocked unconscious, and caused to be thrown from the car as, with a violent jerk, it rounded the curve at the top of the incline. Appellant urges us to apply what she says is the generally accepted rule of law that the operator of a roller coaster is held to the same degree of responsibility in the management of the apparatus as is a common carrier, the highest degree of care, and relies on a number of cases which so hold, including O'Callaghan v. Dellwood Park Co., 242 Ill. 336, 89 N.E. 1005, 26 L.R.A., N.S., 1054; Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417; Bibeau v. Fred W. Pearce Corp., 173 Minn. 331, 217 N.W. 374, among others.

This Court has indicated it does not regard the proper rule to be that urged by the appellant. In Carlin v. Krout, 142 Md. 140, 120 A. 232, 29 A.L.R. 13, the claimant was injured on an amusement device known as the ocean wave, having caught her arm between two overlapping hand rails of different sections of the device, and it was held there was no evidence of negligence to go to the jury. Judge Urner for the Court distinguished the case of O'Callaghan v. Dellwood Park Co., supra, which is relied on strongly by the appellant in the case before us as supporting the highest degree of care rule, and cited as in point and persuasive the case of Pointer v. Mountain Ry. Construction Co., 269 Mo. 104, 189 S.W. 805, L.R.A. 1917B, 1091. There the claimant, riding on a scenic railway, was thrown against uprights beside the track as the car rounded a sharp curve, and it was noted that the Missouri Court had held that there was no showing of negligence since no defect in the car or track and nothing unusual in the behavior of the car at the time of the accident had been testified to, and the claimant was aware of the conditions under which this form of amusement was available. The case of Lumsden v. L. A. Thompson Scenic Railway Co., 130 App.Div. 209, 114 N.Y.S. 421, was cited as reaching the same result on the same reasoning. Judge Urner then stated the rule to be that a proprietor of a place of public amusement is under obligation to use ordinary care and diligence to keep the place in a reasonably safe condition for use by persons attending. He is not an insurer of the safety of persons using devices at the place of amusement but is bound to use ordinary care for their safety and protection and is liable for a breach of this duty resulting in injury. In Glaze v. Benson, 205 Md. 26, 33, 106 A.2d 124, 128, it was said: 'The courts have held that an operator of a place of amusement, to which the public is invited, discharges his obligation if he maintains his facilities in a reasonably safe condition for the purposes for which they are apparently designed and for which they are adapted.'

There is no evidence in the case before us to show that the roller coaster was not in its ordinary condition or that there was anything wrong with the track or the car, except the slit in the upholstery and some looseness of the bar provided for riders to hold onto. It is not shown that the journey of the car during which the accident happened was an unusual one, or that the jerk at the bottom of the incline or the jerk going around the curve to the left were unusual, either for that roller coaster or in relation to those prevailing on roller coasters generally. The appellant herself said that she had ridden on roller coasters before and had ridden on this particular one earlier in the day so that she knew what to expect. One of the boys who was riding in the seat behind the appellant was asked whether anything unusual happens when the car reaches the bottom before it goes up the hill to where appellant was thrown out. His answer was: 'Well, it's not unusual. It's in any racer dip that you ride in. It does throw you back from momentum.' He was asked if anything unusual happens when the car reaches the top, and he said: 'Well, not at the top but on further there is an awful jolt, you hit a sharp turn that gives you a right good jolt.' When asked to describe that jolt, he answered: 'Well, the only thing I can say is when we hit that curve it kind of jolts you a little further and to your right hand side. You would go a little to the right hand side due to the momentum.' On cross-examination, he said he had ridden this particular roller coaster at least five hundred times, that all roller coasters, and this particular one, involve a certain amount of jolts and jerks, which are part of the fun of the ride. He said that he jolts and jerks which he had testified to were not unusual. He elaborated on this statement and said: 'Every mountain speedway has jolts. Some have a little more than others, depending on the size, so I would say as a mountain speedway it has its normal jolts and jars.' When asked about the curve where the accident happened and whether there was an unusual jerk at the time of the accident, he said: 'A roller coaster has unusual jerks, which is normal. That's the fun of riding it. * * * It was a jolt like it always had.'

There was no testimony showing, or permitting an inference other than speculative, that the operation of the device at the time of the accident was not as it always was, and as was to be expected. Likewise, there is nothing that rises above speculation to show what caused the appellant to become unconscious, if she did, before she was thrown from the car. The testimony as to the slit or tear in the upholstery leaves it entirely uncertain whether the boards that were visible could be struck by one's head or whether the upholstery, despite the tear, would still have prevented this. The trial court, in ruling on the directed verdict, said that the evidence in the case showed that the top of the back of the seat was shoulder high on the appellant. There is no evidence that the appellant hit her head on anything, much less an exposed board. There is nothing to indicate that the play in the handle bar had anything to do with the happening of the accident. We think that on the failure to show negligence, the case is not to be distinguished from Carlin v. Krout, supra, and, more particularly not from Benedick v. Potts, 88 Md. 52, 40 A. 1067, 1069, 41 L.R.A. 478. There the claimant was riding a mimic railway at Tolchester Beach, similar in operation to that in the present case. That railway had a tunnel through which the cars passed. The roof of the tunnel was flat, and down its center ran a narrow board two and a half to three inches wide. The claimant was in the car when it entered the tunnel but was not when it came out. He was found unconscious inside the tunnel with a wound on his head. It was shown that a part of the board running down the center of the tunnel roof had been slabbed off at one point. The car did not leave the track. No part of it was shown to be out of repair and there was no evidence...