Kushner v. McGinnis

• Decision Date: 30 January 1935
• Parties: KUSHNER v. McGINNIS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 326

194 N.E. 106

KUSHNER v. McGINNIS (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 30, 1935

Exceptions from Superior Court, Suffolk County; Weed, Judge.

Actions of tort in the Superior Court by Joseph and by Anna Kushner against John A. McGinnis, proprietor of an amusement device. The judge found for plaintiffs in the sums of $137 and $1,500, respectively, and defendant saves exceptions.

Exceptions overruled.

J. M Russell and H. J. Levi, both of Boston, for plaintiff.

J. N. Clark, of Boston, for defendant.

QUA Justice.

These two actions of tort were tried together by a judge of the Superior Court without a jury. The two plaintiffs are husband and wife. The wife's action is to recover damages for personal injury to herself. The husband's action is to recover consequential damages for injury to his wife. For convenience the wife will be referred to as the plaintiff, unless otherwise indicated.

Findings of the trial judge establish the following facts: At the time of the accident the defendant was operating and in control of an amusement device known as the ‘ Dragon Pit’ at Revere Beach.‘ A patron upon admission entered a maze which led eventually to a different type of maze and then to some rooms with tilted floors, and finally to a narrow stairway leading to the top of a slide or chute. This chute was between three and four feet wide. The boards forming the chute or slide were kept highly polished like a dance hall floor. The slide was 75 to 80 feet long and the top landing was at an elevation of about 21 feet above the foot of the slide. The slide started down at an angle of about 45° for about 40 feet to a height of about to one's knee above the floor and then there were two or more mave-like humps before the slide came gradually to the floor level at the further end. The slide was designed to bring people to the foot of the slide and not to come too fast. At the landing at the head of the stairs by which a patron approached the slide, the end of the slide was not in sight, the slider passing through a sort of tunnel for about 30 feet. The tunnel was lighted. At the wall at the foot of the slide a mattress similar to mattresses used in gymnasiums, eight or nine inches thick, was fastened against the wall across the end of the slide. An attendant was kept by the defendant on duty at the head of the slide to help patrons prepare to make the slide, and burlap bags were furnished, upon which patrons might sit in going down and in which they might insert their feet if they desired to protect stockings, dresses and shoes. On the further side of the slide another stairway led down to the floor below by which patrons not wishing to take the slide might return to the street level and the exit, and by which boys employed to return the burlap bags reached the top landing. An attendant stood at the foot of the slide about six feet from the wall to assist patrons in leaving the slide and to retrieve the bags which were returned to the attendant at the top of the slide.’ The attendants were under oral instructions ‘ to safeguard and protect the customers in using the slide so they would not get hurt; more specifically to put bags under each, to instruct them to sit up straight and keep their hands in their laps. * * *’ The plaintiff, who was thirty-three years of age at the time of the accident, is a native of Russia. She speaks English fairly well. She is of medium height and heavy for her height. On the evening of the accident the plaintiff visited the ‘ Dragon Pit’ in company with two other women. They bought tickets at the entrance which admitted them ‘ to all of the joys and wonders' of the Pit. On the plaintiff's ticket were printed the words ‘ The Management will not be responsible for injury to any one who goes through the device (or devices).’ The plaintiff could not read nor did she know what was printed on the ticket.‘ No other means was taken by the defendant to warn her or other patrons that his invitation to enter the Dragon's Pit and to use the chute or slide was not absolute but limited to a use at the patron's risk.’ The plaintiff went down the slide, and was injured when she struck the mattress at the foot of the slide.

After finding for the defendant on several counts of the plaintiff's declarations and on various contentions as to damages, none of which are material to the questions now involved in the cases, the judge found upon all the evidence that the defendant was negligent on the sole grounds that he failed to use reasonable care in so operating the chute or slide as to make it reasonably safe for use by the plaintiff in the way in which it was adapted for use and customarily used, and in failing to warn her of dangers in such use not apparent or readily ascertainable by her; that the evidence fell short of showing that the plaintiff's own negligence contributed to her injury or that she had assumed the risk or that the defendant's invitation to use the slide was limited to use at the plaintiff's own risk. He found for both plaintiffs. The questions argued and now before us are whether the findings for the plaintiffs were justified and whether there was error in the granting of certain of the plaintiff's requests for rulings and in denying certain of the defendant's requests and whether certain exceptions of the defendant to ‘ so much of’ certain specified parts of the judge's findings ‘ as constituted a ruling of law’ should be sustained.

The bill of exceptions states that ‘ In addition to the facts contained in the Court's ‘ Findings" other material evidence was presented at the trial. Some of this evidence tended to support the ultimate findings of the trial judge. The defendant testified that the attendant at the top of...