Hook v. Lakeside Park Co., 18490

• Decision Date: 04 April 1960
• Docket Number: No. 18490,18490
• Citation: 86 A.L.R.2d 33,142 Colo. 277,351 P.2d 261
• Parties: , 86 A.L.R.2d 339 Flora M. HOOK, Plaintiff in Error, v. LAKESIDE PARK COMPANY, a Colorado Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 261

351 P.2d 261

142 Colo. 277, 86 A.L.R.2d 339

Flora M. HOOK, Plaintiff in Error, v. LAKESIDE PARK COMPANY, a Colorado Corporation, Defendant in Error.

No. 18490.

Supreme Court of Colorado, En Banc.

April 4, 1960.

Rehearing Denied May 2, 1960.

Early & Keller, Denver, for plaintiff in error.

Wood, Ris & Hames, Denver, for defendant in error.

DOYLE, Justice.

The plaintiff, Flora Hook, then Flora Wosk, filed a complaint against the Lakeside Park Company on November 23, 1955, alleging that the defendant's negligent maintenance and operation of the Loop-O-Plane resulted in injuries to her and praying damages therefor in the amount of $20,000. Trial was commenced to a jury, but at the close of plaintiff's case the court, on defendant's motion, ordered the complaint to be dismissed and entered judgment in favor of the defendant. Plaintiff seeks reversal of the judgment. The parties will be referred to by name or by their designation in the trial court.

The plaintiff was injured while riding the Loop-O-Plane at the Lakeside Amusement Park in Denver on August 12, 1955. Viewing the evidence most favorably to the plaintiff, the circumstances of the accident are as follows: Plaintiff in company with a number of other young men and women went to the park after a meeting of their ski club. Plaintiff rode on some other devices, and then, together with Mr. Marvin Rossman, boarded the Loop-O-Plane, paying 15cents for a ticket which contained an assumption of the risk provision to be discussed hereafter. The Loop-O-Plane is a device consisting of a cylindrical shaped car in which two passengers sit back-to-back. The car is attached to a long arm which rotates in a circle on a vertical plane in alternately clockwise and counterclockwise directions. Plaintiff testified that on boarding the car she noticed a leather strap across her body below her waist but that she did not feel any pressure from this strap when the machine was not in motion, and that she could not see from inside the car how it was fastened. This strap crosses over a passenger's body in much the same manner as a safety belt in an automobile or an airplane. A metal cross bar extended across the car in front of the passenger. Plaintiff took hold of this bar as the device started but was unable to retain her hold as the car swung through a full circle. Plaintiff testified that the attendant.

'told me that I would hit my head, but he didn't tell me where I would hit it--that it's possible that I might hit my head.'

and that

'I bumped by head on the floor. He didn't tell me I would go all the way over and bump my head on the floor.'

and that the attendant made no other statement to her other than that she might bump her head. The car first swung back and forth a few times and then swung through a complete circle. On this first circle the plaintiff lost her hold on the bar and was thrown violently forward so that her head touched the floor of the car (not the wire mesh cover over the top of the car) and then back into her seat. Plaintiff testified that as the car went through the full circle she felt the belt across her but that it 'didn't hold me in position.' She heard a sharp crack and felt a severe pain in her back at this time and began to scream for the ride to be stopped. In this regard, the doctor who treated her testified that plaintiff told him that the injury occurred when she was thrown forward although the plaintiff's testimony was to the effect that she thought it happened when she was thrown back. Examination revealed plaintiff to have suffered a compression fracture of the first lumbar vertebra in the center of her back. It also appeared that the plaintiff had had prior difficulties with the lower and upper parts of her spine, but the doctor who treated this fracture and who appeared as an expert witness in her behalf, testified that the prior injuries would have no effect on the susceptibility of this part of her back to this type injury; that this was the area of the back where such an injury would be typically produced by a stress such as plaintiff experienced.

Plaintiff contends that an adequate case was made before the trial court either on the theory of simple or common law negligence or of res ipsa loquitur to justify submission of the cause ot the jury. Defendant, on the other hand, makes the following points: (1) applicability of the doctrine of res ipsa loquitur has been raised for the first time in this Court and should therefore not be considered, (2) plaintiff's evidence having established the cause of her injuries, the doctrine of res ipsa loquitur was not applicable, (3) plaintiff failed to establish a factual situation to which res ipsa loquitur could be applied, (4) plaintiff failed to establish a prima facie case of negligence, (5) plaintiff assumed the risk of the injury received.

There is no serious dispute in the evidence itself. The dispute arises with respect to the proper inferences to be drawn therefrom. Plaintiff's version is that the leather safety strap was not fastened tightly enough, and that the failure on the part of the defendant's servant to tighten it was a violation of duty which constituted negligence, and was the proximate cause of the injury. She maintains that if it had been fastened tightly she would not have been injuried. Plaintiff's counsel presented his theory of the case in his opening statement as follows:

'There is a thick leather safety strap two or three inches wide which was attached to the outside of the car, was fastened by the attendant from the outside, not by the passenger. The passenger doesn't do anything. Just sits in there.

'The testimony will be that she doesn't remember this strap particularly. She had no reason to notice whether it was fastened or not. She didn't feel the strap during the beginning of the ride, that is, across her body at all.

'Now the evidence will show that the strap is designed to hold against the seat, so when it goes around you don't get thrown out.

'The evidence will show that when the thing gathered momentum she was sitting in the seat, she was thrown clear forward so that her head touched the ground. That is, not the ground, but between her feet there, in the bottom of the car, and it was at that time that she felt the strap when she was clear down with her head touching the floor.

'The evidence will show that the strap was designed to be tight enough so that it wouldn't permit you to go that far forward.

* * *

* * *

'The evidence will further show that had the strap been fastened the way it should have been fastened to keep her tight against the seat, that there would have been no way for her to have been injured on the device. That the device of and by itself is not dangerous; that its been used for a number of years at Lakeside Park, and that it is a fact that the strap was in such a position that she could be thrown forward and flipped back in the manner that I have described. That is the reason this injury occurred. Thank you.'

Defendant argues that the evidence is insufficient to establish a prima facie case of negligence. It is pointed out that the record is devoid of evidence to establish that the strap was designed to protect against the hazard of moving forward; that there is a dearth of evidence to establish the function of the strap; that since it is located across the hips and down, it is logical to suppose that it was intended to hold the occupant against the force of gravity when the car moves into an upside down position and that the bar in front of the person is the protective device against the kind of forward motion which produced the compression fracture. (Plaintiff testified that she tried but was unable to hold this bar.)

I.

The legal standard applicable to liability for injuries incurred on an amusement device is that of reasonable precautions to avoid injury, or as it is sometimes called, that of ordinary care. The circumstances which attend an activity such as the present one being extremely and intrinsically hazardous, demand a degree of care commensurate with the risk. Consequently a slight deviation from the standard (where, as here, the circumstances require great care) resulting in personal injury will render the actor liable. Denver Consolidated Electric Co. v. Simpson, 21 Colo. 371, 41 P. 499, 31 L.R.A. 566; Blankette v. Public Service Company of Colorado, 90 Colo. 456, 10 P.2d 327. See Prosser on Torts 147, Restatement of the Law of Torts, Sec. 297, 52 Am.Jur. 317, Sec. 129 Theatres, etc. It does not follow, however, that an operator of an amusement device, such as the defendant, is an insurer of the passenger's safety. The presumptions or inferences available to passenger in an action against a carrier are not available in such circumstances. The warranty of safe carriage, present in the carrier case, is absent where a plaintiff undertakes to ride on a device such as a Loop-O-Plane in an amusement park. Here the obligation is to render care commensurate with the risk involved, and the predominant warranty which the operator offers is not that the passenger shall be safe, but that he shall receive a thrill. No such factors are present in injury cases arising out of a carrier-passenger relationship. Cf. Sanderson v. Frazier, 8 Colo. 79, 5 P. 632; Denver, South Park & Pacific Ry. Co. v. Woodward, 4 Colo. 1; Denver & Rio Grande R. Co. v. Fotheringham, 17 Colo.App. 410, 68 P. 978.

II.

Plaintiff's proof is deficient in that it fails to establish that neglect on the part of the defendant acted to produce her injury in fact or in law. The problems of legal and factual cause are intertwined and are not susceptible to separate treatment.

1. The evidence is vague and does not establish with certainty that the strap was loose. Plaintiff testified that she could not feel it until the car revolved. We are left to speculate as to the extent of its looseness. Thus it is questionable whether defendant has...