Jeroma v. McNally
| Decision Date | 06 June 1949 |
| Citation | 324 Mass. 385,86 N.E.2d 638 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HAZEL C. JEROMA & others v. WILLIAM T. MCNALLY. |
May 3, 1949.
Present: QUA, C.
J., LUMMUS, DOLAN SPALDING, & WILLIAMS, JJ.
Negligence Merry-go-round.
A finding of negligence on the part of the proprietor of a merry-go-round toward a passenger thereon, who was injured when the merry-go-round suddenly increased in speed of operation and a wooden horse on which the passenger was riding came loose and "swung out" and he was thrown off the merry-go-round, was warranted by evidence that the proprietor before the accident knew that the merry-go-round was defective and that there was no one at the controls in its center to stop it at the time of the accident.
TORT. Writ in the Superior Court dated September 6, 1945. The action was tried before O'Connell, J.
L. H. Peters, for the defendant.
T. J. Murphy, (L.
E. Ryan with him,) for the plaintiffs.
This is an action of tort. The declaration is in three counts, the first for personal injuries to Hazel C. Jeroma, the second for personal injuries to her daughter, Lorraine M. Jeroma and the third for consequential damages to the husband of Hazel C. Jeroma resulting from the injuries to her. G. L (Ter. Ed.) c. 231, Section 4A, as inserted by St. 1943, c. 350, Section 1; Section 6A, as inserted by St. 1939, c. 372, Section 1. Repucci v. Exchange Realty Co. 321 Mass. 571 . Clouatre v. Lees, 321 Mass. 679 . There were verdicts for the several plaintiffs on all the counts, and the case comes here on the exceptions of the defendant.
There was evidence tending to prove the following facts. The defendant operated a merry-go-round at a carnival at Dedham. The diameter of the merry-go-round was variously estimated at thirty-six feet and at twelve feet. It was operated by a gasoline motor, the controls of which were in the center of the merry-go-round. It contained thirty seats in the form of horses, arranged in ten rows, three abreast. On May 29, 1945, Hazel C. Jeroma, accompanied by her daughter, Lorraine, bought a ticket, and put her daughter on a white horse on the outside edge of the merry-go-round. As her daughter could not put her feet in the stirrups, the mother stood beside her and held her. After several revolutions of the merry-go-round, it suddenly went faster, "terribly fast," and "the child was being pulled right up and out and jerking terribly." A child screamed, then the merry-go-round revolved three or four times before stopping, "the horse came free at the bottom so that it swung out," and both mother and daughter were thrown off the merry-go-round and hurt. The merry-go-round could be stopped in one and one half revolutions while running at full speed. There was not only evidence that the merry-go-round was revolving faster than usual, but also evidence that although the defendant kept three or four men working on the merry-go-round all the time, there was no one at the controls at the time of the accident, to shut off the power.
The defendant had been watching the merry-go-round for about ten minutes before the accident, and was present at the time of the accident. About eight minutes before the accident a white horse on the outside edge of the merry-go-round had become detached from its fastenings, the merry-go-round had been stopped, and one of the men picked up a red pipe and put it in the floor to remedy what had happened to the white horse. Then the merry-go-round was started again.
After the accident, the defendant told one of his men to take the horse off the merry-go-round, and the man took off three horses. The defendant said to the man, The jury could find from that, that the defendant knew that something had been defective in the merry-go-round, that needed remedying.
The defendant excepted to the denial of his motion for a directed verdict in his favor.
The female plaintiffs were business invitees of the defendant, and were entitled to due care on his part in keeping the premises in a reasonably safe condition for their use. Lemoine v. Springfield Hockey Association, Inc. 307 Mass. 102 , 104. Noble v. Park Enterprises, Inc. 313 Mass. 454 , 457. Bell v. Dorchester Theatre Co. 314 Mass. 536 . Matthews v. L & L Enterprises, Inc. 314 Mass. 538 . Rouillard v. Canadian Klondike Club, Inc. 316 Mass. 11 , 14. A jury would be justified in holding the proprietor of a merry-go-round to a high degree of care, because of the danger of serious injury to his patrons if it should be defective. Brennan v. Ocean View Amusement Co. 289 Mass. 587 , 592. The fact that the merry-go-round went out of order while being used warranted the inference that it was defective and unsafe. Callahan v. New England Telephone & Telegraph Co. 216 Mass. 334 , 336. Matthews v. L & L Enterprises, Inc. 314 Mass. 538 , 539.
On the whole evidence, we think it could have been found that the defendant and his servants had notice that the merry-go-round was defective and dangerous, and failed to use due care in making it safe before permitting the female plaintiffs to ride on...
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