Lakeside Park Co. v. Wein
| Decision Date | 31 August 1943 |
| Docket Number | 15325. |
| Parties | LAKESIDE PARK CO. v. WEIN. |
| Court | Colorado Supreme Court |
Error to District Court, Jefferson County; George Fischer, Judge.
Action by Shirley Wein, a minor, by her next friend and natural guardian, Jennie Shiler, against the Lakeside Park Company for personal injuries suffered when plaintiff was struck by a rolling pin thrown by a contestant in a game at defendant's park. Judgment for plaintiff, and defendant brings error.
Affirmed.
Felix L. O'Neill, of Denver, for plaintiff in error.
Sam F. Davis, A. M. Lutz and M. S. Ginsberg, all of Denver, for defendant in error.
This action was instituted below by defendant in error, Jennie Shiler, as the natural guardian and next friend of Shirley Wein, a minor aged twelve, against plaintiff in error Lakeside Park Company, for damages for personal injuries suffered by said Shirley Wein when she was struck on the head by a rolling pin thrown by a contestant in one of the games at the park on January 27, 1941. The action was based on the alleged negligence of the company. The matter was tried to the court without a jury, findings on the issues were in favor of plaintiff and judgment was duly awarded her in the sum of $750 and costs. To reverse this judgment, plaintiff in error, to which we hereinafter refer as the company, brings the matter here by writ of error. For convenience Shirley Wein will be herein designated as plaintiff or by name.
On the day in question Shirley, in company with her parents and brother, went to the park to spend the afternoon, paying the usual admission fee of five cents. After walking around for a time they noticed a group of people gathered in what is known as the 'Sunken Gardens,' which is an area approximately 200 feet long and 75 feet wide, about two and a half to three feet below the level of the surrounding ground and enclosed by a fence. This area had been leased for the day (January 27, 1941) to the employees of the Chicago Burlington & Quincy Railroad company and Colorado & Southern Railway Company for picnic purposes and at the time Shirley and her associates appeared on the scene, a program of various contests was in progress. After watching these contests for some time, Shirley asked her mother for money with which to buy some refreshments. She was given the money and was on her way to make the purchase at a time when a number of ladies (wives, daughters or friends of the railway employees) were having a rolling-pin throwing contest, and just as she approached the steps leading out of the 'Sunken Gardens' she was struck on the head by a rolling pin thrown by one of the contestants, which, having hit a tree, was deflected in her direction. At the time there were about three hundred people gathered along the sides of the gardens in a V-shaped group. There is testimony in the record indicating that a loud speaker was being used, and immediately prior to the rolling-pin contest the people were warned to stand back, and guards passed along, directing the spectators to stand back as far as possible. Both Shirley and her mother testified that they heard no such warning. It is difficult to determine from the record the exact route chosen by Shirley when she left the gardens. She says she passed behind the contestants, but testified at the same time that the rolling pin was thrown forward. She admits she was not watching for thrown pins as she was leaving the gardens; however, since it is conceded that she was hit by one of the pins, her exact location could only be important in the consideration of the question of contributory negligence, which we will discuss later.
There was a written agreement between the company and the railway employees, by which the employees were assured the use of the Sunken Gardens, and, among other concessions, they were granted reduced rates on various amusements in the park; the company, however, reserved the right to sell tickets at the main entrances to the park on...
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