McCollum v. Winnwood Amusement Co.

• Citation: 59 S.W.2d 693,332 Mo. 779
• Decision Date: 20 April 1933
• Docket Number: 30804
• Parties: Carlene McCollum, by Curator, v. Winnwood Amusement Company and Winnwood Development Company, Appellants
• Court: Missouri Supreme Court

59 S.W.2d 693

332 Mo. 779

Carlene McCollum, by Curator, v. Winnwood Amusement Company and Winnwood Development Company, Appellants

No. 30804

Supreme Court of Missouri

April 20, 1933

Appeal from Linn Circuit Court; Hon. Paul Van Osdol, Judge.

Reversed and remanded.

Thomas P. Burns, Inghram D. Hook and Paul C. Sprinkle for appellants.

(1) The court erred in failing to sustain the general and specific demurrers offered by the appellants Winnwood Amusement Company and Winnwood Development Company at the close of respondent's evidence. Warner v. Ry. Co., 77 S.W. 69; Coin v. Lounge Co., 121 S.W. 6; State ex rel. Wabash Ry. Co. v. Bland, 281 S.W. 690; Hamilton v. Ry. Co., 300 S.W. 792; Vowels v. Ry Co, 8 S.W.2d 10; Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 43; State ex rel. St. Charles v Haid, 28 S.W.2d 103; State ex rel. Gosselin v Trimble, 41 S.W.2d 805. (2) The court erred in refusing to sustain the demurrers of appellants Winnwood Amusement Company and Winnwood Development Company at the close of all the evidence. (3) The court erred in given Instruction 1 on behalf of the respondent. Beeson v. Fleming, 285 S.W. 708. (4) The court erred in excluding the testimony of expert witness McGinnis explaining why the top of the slide was built a certain size. National Enameling & Stamping Co. v. Zirkovics, 251 F. 184; Carlisle v. West Texas Fair Assn., 12 S.W.2d 599; McGinnis v. Printing Co., 122 Mo.App. 227, 99 S.W. 4; Obermeyer v. Chair Co., 129 S.W. 209. (5) The verdict was excessive. Powell v. Rys. Co., 226 S.W. 916; Lackey v. Ry. Co., 264 S.W. 807; Sullivan v. Ry. Co., 12 S.W.2d 735; Morris v. Cement Co., 19 S.W.2d 865.

C. K. Hart, C. W. Prince, James N. Beery and Clyde J. Linde for respondent.

(1) Appellants' demurrer offered at the close of respondent's evidence was properly overruled. Laughlin v. Railway, 275 Mo. 466, 205 S.W. 3; Berberet v. Amusement Co., 319 Mo. 275, 3 S.W.2d 1029; Steinke v. Palladium Amusement Co., 28 S.W.2d 440; Roark v. Electric Park Amusement Co., 209 Mo.App. 638, 241 S.W. 651. (2) Appellants' demurrers offered at the close of all the evidence were properly overruled. (3) Respondent's Instruction 1 was proper. Bricker v. City of Troy, 315 Mo. 353, 287 S.W. 341; Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 778; Meily v. Railroad Co., 215 Mo. 587, 114 S.W. 1013; Kamer v. Railroad Co., 326 Mo. 807, 32 S.W.2d 1073. (4) There was no error in excluding the answer of expert witness McGinnis to appellants' question as to why the level top portion of the chute was made a certain size. Hach v. St. L. I. M. & S. Ry. Co., 208 Mo. 581, 106 S.W. 525; State ex rel. Farrell v. Leland, 82 Mo. 260. (5) The verdict is not excessive. Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Rogles v. United Rys. Co., 232 S.W. 93; Bales v. K. C. Public Service Co., 328 Mo. 171, 40 S.W.2d 665.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

Plaintiff, a girl about twelve years old at the time of her injury, brought suit by her curator and recovered a judgment for ten thousand dollars in a jury trial against the two defendants for personal injuries alleged to have been caused by defendants' negligence, and defendants have appealed.

Defendant Amusement Company operated an outdoor amusement park a few miles north of Kansas City, in Clay County, of which the defendant Development Company was the owner, and at this park plaintiff was injured by having her leg broken in attempting to go, or slide, down a slide maintained and operated by defendants for the amusement of patrons. The negligence alleged is in the construction of this slide, a wooden structure about twenty-five feet high. The sliders ascended a stairway to the height of about twenty-five feet where the slide proper began, first on a level and then downward at an angle of about forty-five degrees, curving again near the bottom to a level and landing the sliders in the water of a lake. The slide itself was a sort of trough or chute, the metallic bottom being smooth and some twenty inches wide, with wooden sides or sideboards some eight inches high used more or less as handholds by the sliders and to prevent their going off at the sides. Water emptied from a pipe near the top and flowed down the incline or slide keeping it wet and slick.

Plaintiff's petition alleged that defendants' amusement park contained a large pool or lake of water for swimming and diving, for the use of which defendants charged a consideration; that said park contained, and the defendants constructed, maintained and operated a device or sliding chute which was maintained for the amusement of swimmers and was connected with a pool or lake of water; that said chute is approximately twenty-five feet high and of greater length; that the surface of said chute is covered with metal upon which running water is made to flow down said chute; that the top of said chute is approached by a winding stairway; that at the top or starting place of said chute there is provided a small platform and that said chute is several inches above said platform; that around said platform there is a handrailing, which railing extends across the end of said chute in an oblique manner.

Plaintiff then alleges that on or about the 21st day of July, 1928, she became a patron at said place of amusement and as such paid a consideration and entered the lake or pool referred to; that plaintiff ascended the diving or sliding chute for the purpose of sliding down the same into the water; that upon reaching the top of the chute and while so using same, the plaintiff was caused, through the negligence and carelessness of defendants, to suffer serious, painful, and permanent injuries in that plaintiff's right leg was bruised and the femur bone thereof was broken and fractured.

The carelessness and negligence of the defendants in causing said injuries are alleged to be that said chute was constructed and maintained in a faulty and defective manner in that the top or starting place was not of sufficient length and size to properly admit plaintiff's body, and was surrounded by a scaffold or railing which was open and likely to cause a person's limbs to be caught and ensnared while using the same, and particularly so because of its limited space to receive the body of a user without coming in contact with the open balustrade, which condition or construction was known to defendants in sufficient time to have remedied and changed the same.

Defendants filed their answer consisting of a general denial and alleging "that any injury of which plaintiff complains was solely and directly due to the carelessness and negligence of plaintiff in that she slid down said slide with a portion of her body upon the body of her brother, thereby raising her body up level with the sideboards on the slide, and while in said position plaintiff carelessly and negligently permitted one leg to get outside of the slide, thereby directly causing any injury of which she complains."

The plaintiff and her brother, much older than she, were the sliders on this occasion and were the chief witnesses in this case. Their evidence is that on the evening in question they, with their parents, went to defendants' amusement park and paid the usual admission. After being there a short time plaintiff and her older brother decided to use this slide, as many others were doing. Plaintiff had never used it before, but her older brother was thoroughly familiar with its construction and use and he led the way. Going to the top, the brother stepped from the standing place or platform along the side of the chute or slide over the eight-inch sideboard into the level part of the slide at the top and took a position in a sitting posture at or near where the slide starts to curve downward, facing backwards so as to go down on his back. His legs and feet were thus extended along the level part of the slide and by moving, or perhaps merely leaning, backwards and releasing his hold on the sideboards, gravity would take him down the slide. Plaintiff also got into the slide further away from the place of descent and at her brother's direction took a crouching position facing her brother and between his feet or knees so as to go down the slide on her stomach with her legs extended backward and upward in the descent. Plaintiff says that when she and her brother were in this position they started down the slide simultaneously, the brother going down on his back with his legs extended, and she following close behind him with her head and breast between his knees and feet; that she extended her legs backward as she started forward and downward and her right leg caught in the open balustrade or scaffold at the back end of the chute or slide, resulting in breaking her leg about half way between the knee and hip joint. Defendants' version of the accident is that the plaintiff, in making the descent of the slide, placed her body upon the body of her brother, thus raising herself higher than the sideboards of the slide or chute, and that her right leg extended over and outside of the sideboard of the chute and thus struck one of the upright supports of the chute about half way down the slide, and thus caused her injury. Both plaintiff and her brother stoutly deny that she was above and on the body of her brother in making the descent or that her right leg was outside of the chute or that it struck anything during her descent. She testified positively that her injury was received at the top of the slide just as she was starting down and by reason of her leg getting caught in the balustrade or handrailing at the top and beginning of the slide.

Defendants demurred to the evidence and insist with much earnestness that it is impossible for plaintiff to have received the injury which she...