Hollis v. Kansas City, Mo., Retail Merchants' Ass'n.

• Citation: 103 S.W. 32,205 Mo. 508
• Parties: HOLLIS v. KANSAS CITY, MO., RETAIL MERCHANTS' ASS'N et al.
• Decision Date: 11 June 1907
• Court: United States State Supreme Court of Missouri

103 S.W. 32

205 Mo. 508

HOLLIS v. KANSAS CITY, MO., RETAIL MERCHANTS' ASS'N et al.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

NEGLIGENCE — LIABILITY — INTEREST IN PLACE.

An association gave a street fair and carnival, in which an amusement company furnished their appliances for amusements, including a gondolas, similar to a merry-go-round, under contract by which the fees for riding on the gondolas collected by the company, were divided between the association and the company. The association had general charge of all the grounds, and took an active part in distributing advertisements of the amusements. Held, that the association, as well as the company, was liable for injury to one riding on the gondolas, caused by negligence in the construction, operation, and management thereof.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Lenora Hollis against the Kansas City, Mo., Retail Merchants' Association and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

This cause is here by appeal from a judgment for the defendant. The cause of action is thus stated by plaintiff in her petition, which is as follows: "Plaintiff for her cause of action alleges that the Kansas City, Mo., Retail Merchants' Association is a corporation duly incorporated according to law. That the defendant Bostock-Ferari Carnival Company is a corporation duly incorporated according to the laws of the state of Delaware, and at the time of bringing this suit maintained an office in the county of Jackson and state of Missouri. That Frank C. Bostock and Francis Ferari are partners doing business under the name and style of Bostock-Ferari Carnival Company, and at the time of bringing this suit maintained an office in Jackson county, in the state of Missouri. That on the 7th day of October, 1902, the said defendants were conducting in Kansas City, at or near Fifteenth street and the Paseo, an enterprise or exposition known as `Kansas City's Fall Festival Exposition.' That for the purpose of inducing people to attend said exposition, and to pay admittance fee thereto, said defendants set up and operated at said place, among other things, what is known as a `Gondolas,' which said gondolas was so constructed that it had a circular track upon which cars revolved, in which cars passengers or customers were invited for the consideration of 10 cents, to be paid by such passengers, to take seats and be carried on and around said track in said cars. That a great many people on said 7th day of October, 1902, patronized said gondolas and were carried thereon and therein around said track in and upon said cars. That plaintiff, on said date, being invited thereto by defendants, took a seat in one of said cars for the purpose of riding thereon, and paid to defendants the usual and customary charge therefor, to wit, the sum of 10 cents. That it was the duty of defendants to see that said apparatus was safe in every respect, to run said cars at a rate of speed that would not be dangerous to the public, and to use diligence to prevent same from giving way or breaking, and to see that passengers thereon were not endangered by any defect therein, or mismanagement by the agents and servants in charge of said apparatus and the machinery used in running the same. That said apparatus was dangerous and unsafe, in this: That the front axle of said car in which plaintiff was riding was broken and cracked half in twain, which rendered same weak, dangerous, and unsafe, which fact was well known to defendants, or by the exercise of ordinary care might have been known by them. That plaintiff, while so being carried around upon said track and in said car, at a great and unusual speed, was, by reason of the negligence of defendant in running said car at said unusual rate of speed, and by reason of the dangerous and unsafe condition of said axle, as aforesaid, and by reason of the negligence of the defendants in not inspecting said apparatus to see that the same was in good condition, and by reason of the negligence of defendants in running said car as aforesaid, said apparatus broke down and gave way, and plaintiff was violently and with great force thrown against an upright post, which was a part of said gondolas, and struck said post with great force with her head and face, whereby she was greatly wounded and disfigured, in this: That the skin in the front and side of her face was torn loose; her nose was split open and horribly lacerated. That on account of said injuries she has suffered great physical pain and mental anguish, and has been permanently injured and disfigured, and will be for the balance of her natural life permanently injured and disfigured, as aforesaid, to her damage in the sum of $20,000. Wherefore by reason of the premises plaintiff prays judgment against defendants and each of them in the sum of $20,000, together with costs." To this petition separate answers were filed; one by the carnival company, which was a general denial. The answer of the retail merchants' association consisted of a general denial and a plea of contributory negligence.

An examination of the abstract of the record, which discloses all of the evidence introduced in this cause, substantially verifies the statement of the facts in proof as made by the appellant, and the respondent seems to have given this cause no attention, and the statement as made by the appellant is before us unchallenged in any particular. Therefore we shall adopt substantially the statement as here presented by the appellant. The facts as developed upon the trial of this cause were substantially as follows: The Kansas City Retail Merchants' Association is a corporation, and in the fall of 1902 was engaged in the enterprise of giving what was called a street fair at Fifteenth street and Paseo in Kansas City, Mo. This street fair was composed of various exhibits furnished by such exhibitors as desired to exhibit their goods, wares, and merchandise, and also an exhibit of live stock. The enterprise was for profit. In addition to the exhibits as aforesaid, a portion of the ground was set apart, and upon which were located various amusements for the entertainment of visitors to the fair, consisting of "German Village," "Trained Wild Animal Show," and other attractions, and also the "Venetian Gondolas," something similar to a merry-go-round. The general entrance was at Fifteenth street at the northwest corner of the grounds. The grounds were inclosed on all sides so that admission thereto could only be gained by entering at the general entrance gate, and for such admission a fee of 10 cents was charged by the fair association, all of which went to the defendant retail merchants' association. Clear across the east side of the grounds a space was fenced off, in which, among other attractions, was located the Venetian gondolas. There was also a gate or entrance to that tract of ground which was known as the "Midway," at which was likewise charged a fee of 10 cents for admission. Visitors who paid this fee could walk around in that space of ground and see whatever was not inclosed by tents, etc. If such visitors desired a closer inspection of such amusements an additional fee was charged for entrance thereto, and if visitors desired to ride on the gondolas a fee of 10 cents was charged for that privilege. The testimony fairly shows, or at least it is susceptible of a legitimate inference, that the defendant Bostock-Ferari Midway Carnival Company entered into a contract of some sort with the defendant retail merchants' association, whereby said Bostock-Ferari Company was permitted to place in said grounds so set off certain amusements, including the gondolas, and that said Bostock-Ferari Company collected the admission fee of 10 cents for entering the Midway, which admission fee was divided between the Bostock-Ferari Company and the retail merchants' association. The testimony tends to show that the fees charged for riding on the gondolas was likewise divided between the retail merchants' association and the Bostock-Ferari Company. Plaintiff sought to introduce a written contract which it was admitted was signed by the retail merchants' association and the Bostock-Ferari Company. This contract was excluded by the court upon the ground that it was claimed by defendants that the same had been modified. Plaintiff introduced in evidence a large poster, as follows: "Kansas City Retail Merchants' Association, Street Exposition. County Fair, from Sept. 29, to Oct. 11, inclusive. A fortnight of festivities. 50 superior paid and 50 free attractions furnished by the world's famous Bostock-Ferari Carnival Company. Watch future announcements." It was testified by one of the witnesses, a member of the retail merchants' association, that this poster was printed and circulated by the joint authority and consent of said association and the Bostock-Ferari Company. In addition to the above, plaintiff introduced in evidence another circular, which is as follows: "Kansas City's Fall Festival Exposition, September 29 to October 11, 1902. Roosevelt day, in honor of President Roosevelt. President Roosevelt will visit the Kansas City Fall Festival Exposition Monday afternoon September 29, 1902. The largest fair ever held in the West. 20 acres of enclosed space. Agricultural and live stock shows. Manufacturers'...