Lewis v. The Sells-Floto Shows Company
Decision Date | 06 May 1916 |
Docket Number | 20,191 |
Citation | 157 P. 397,98 Kan. 145 |
Parties | BESSIE F. LEWIS, Appellee, v. THE SELLS-FLOTO SHOWS COMPANY, Appellant |
Court | Kansas Supreme Court |
Decided, January, 1916.
Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. TRIAL--Evidence--Findings--Verdict. The evidence and findings examined and held to be such as to uphold the general verdict.
2. NEGLIGENCE--Circus Seats--Personal Injuries. Those attending circus performances need not assume that the seats provided by the management are unsafe or make a critical examination of their fitness for the use which patrons are invited to make of them.
3. SAME--New Trial--Newly Discovered Evidence. A new trial is not to be granted for newly discovered evidence until there is a fair showing of diligence, and unless such evidence would probably require a different decision.
J. B. Larimer, of Topeka, and Frank M. Lowe, of Kansas City, Mo., for the appellant.
Sullivan Lomax, of Cherryvale, W. S. McClintock, Edwin A. Krauthoff, and A. L. Quant, all of Kansas City, Mo., for the appellee.
The plaintiff attended a circus, occupying a seat from which she in some manner fell and broke her arm, and brought this action to recover damages. She alleged, in substance, that the seats were constructed upon a framework upon which boards were arranged above one another, frames or boards being placed underneath at convenient distances for support; that the board upon which she sat was lapped upon another, "and that the ends of the two boards had nothing whatever beneath them for support; that the other patrons of the show sitting upon the other ends of each of said boards held them in position so long as they remained upon said boards; that said plaintiff had no knowledge of the condition of said board or seat and that she believed the same to be safe; that at the close of the performance aforesaid, some parties sitting upon the opposite end of the board which she occupied, not knowing of any lack of support, arose and started to leave the show; that thereupon the seat which plaintiff occupied sank down and she fell a distance of twelve feet upon the ground." She recovered, and the defendant appeals.
It is contended that the verdict is not sustained by the evidence and special findings, and that error was committed in refusing a new trial because of newly discovered evidence. The findings, aside from the general questions of negligence and contributory negligence which were decided in favor of the plaintiff, were to the effect that the injury was caused by the board upon which she sat falling, and that she did not fall when standing or attempting to stand upon the board next to the one she had been sitting on.
The negligence, according to the answer to question No. 5, consisted "in not placing the seat lengths properly on the supports."
The theory of the plaintiff seems to be that the end of the board on which she sat either did not rest at all or rested very insecurely and insufficiently upon the support, so that when those sitting farther away from the end arose, her weight, or that together with the weight of the others sitting near her, caused her end of the board to drop, thus precipitating her to the ground. The defendant's theory is that the fall was the result of a mere accident or of the gross carelessness of the plaintiff, who knowingly remained upon the unsupported end of the board. The testimony discloses that different witnesses came to different conclusions, some asserting that the slipping or pushing of the board on which plaintiff's feet rested caused her to fall, while others supported the plaintiff's theory and allegations. Her brother testified that the plaintiff, with another young lady and two gentlemen, were sitting in a row, the support and lap being between the two young ladies; that when the other young lady and one of the gentlemen arose to leave, he saw they could not get out right away and started to sit down; "then the three men at their left got up and the board plaintiff was sitting on fell"; that the board did not reach the stringer; that the board did not lap; that the board on which the witness sat rested on a stringer and was on top of the board on which the plaintiff sat. The testimony of those and other witnesses was to the effect that one board rested on the other and lapped the stringer, while the one underneath it, on which the plaintiff sat--that is, the end which should have rested on the stringer underneath the other board--did not reach or lap the stringer.
It is claimed that because the plaintiff admitted that the board gave or sagged a little, it was her duty to seek another location. Her escort testified that he noticed it was not over-safe, and wanted to buy a reserved-seat ticket. She testified, however, that she did not notice the giving of the seat until some little time before the end of the...
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