Miratsky v. Beseda

• Decision Date: 21 March 1941
• Docket Number: 30944,30945
• Citation: 297 N.W. 94,139 Neb. 229
• Parties: ANTON MIRATSKY ET AL., APPELLANTS, v. BESEDA ET AL., APPELLEES
• Court: Nebraska Supreme Court

297 N.W. 94

139 Neb. 229

ANTON MIRATSKY ET AL., APPELLANTS, v. BESEDA ET AL., APPELLEES

Nos. 30944, 30945

Supreme Court of Nebraska

March 21, 1941

APPEAL from the district court for Douglas county: JOHN W. YEAGER JUDGE. Affirmed in part and reversed in part.

AFFIRMED IN PART AND REVERSED IN PART.

Syllabus by the Court.

1. Where a structure, the collapse of which causes an injury, is shown to be under the management of a defendant, and the collapse is such as in the ordinary course does not happen if those who have its management use proper care, the collapse affords reasonable evidence, in the absence of explanation by the defendant, that it arose from want of care.

2. The above rule is not applicable where there is direct evidence as to the precise cause of the collapse and all the facts and circumstances attendant upon the occurrence clearly appear.

3. The above rule is not applicable to a defendant unless it appears that the structure, the collapse of which caused the injury, was wholly and exclusively in the possession and under the management of the defendant.

Appeal from District Court, Douglas County; Yeager, Judge.

Consolidated actions by Anton Miratsky and Bessie Miratsky against Beseda, a corporation, and the Katolicka Sokol No. 1 of South Omaha, Nebraska, to recover for injuries sustained by Bessie Miratsky and for expenses and loss of services. Beseda moved for a dismissal, and the Katolicka Sokol No. 1 of South Omaha, Nebraska, moved for a directed verdict. The motions were sustained, and the plaintiffs appeal, and the appeals are consolidated.

Cause reversed as to the Katolicka Sokol No. 1 of South Omaha, Nebraska, and remanded for further proceedings, and as to Beseda, judgment affirmed.

Fischer, Fischer & Fischer, for appellants.

James T. English and Crofoot, Fraser, Connolly & Stryker, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ.

OPINION

SIMMONS, C. J.

These cases present the question, does the rule of "res ipsa loquitur" apply?

In June, 1938, the defendant corporation, Katolicka Sokol, sponsored a gymnastic exhibition for which an admission fee was charged. For that purpose, it rented and paid for the use of grounds of the defendant Beseda. The defendant Katolicka Sokol erected temporary bleachers on the grounds, so arranged that there were six rows of seats, each elevated behind the other. Plaintiffs attended the exhibition, paid their admissions, were directed to seats in the bleachers and sat on the third row from the top. The lower rows of seats were fully occupied. Just as the exhibition was starting, the seats moved to the right, the bleachers collapsed to the ground and plaintiff Bessie Miratsky was injured. The method of construction of the seats and the cause of the collapse are not shown.

Plaintiff Bessie Miratsky sues for her injuries; plaintiff Anton Miratsky, the husband of Bessie, sues for his expenses and loss of his wife's services. The cases were consolidated for trial.

At the close of plaintiffs' case in chief, the defendant Katolicka Sokol moved for a directed verdict, for the reason that the evidence was entirely insufficient to sustain a verdict against it, and the defendant Beseda moved for a dismissal, for the reason that the evidence was insufficient to warrant a verdict against it. The trial court sustained both motions. The cases were consolidated on appeal.

In Welsh v. Jefferson County Agricultural Society, 121 Neb. 166, 236 N.W. 331, this court held: "While one who operates a place of public amusement or entertainment is held to a stricter accountability for injuries to patrons than owners of private premises generally, he is not the insurer of the safety of patrons, but owes to them only what, under the particular circumstances, amounts to ordinary and reasonable care. * * * The only question remaining in this case is whether the bench which broke, injuring the plaintiff, was properly constructed for the purpose for which it was intended, or was the defendant negligent in its construction. * * * In such a case, what is ordinary and reasonable care under the particular circumstances is ordinarily a question for the jury."

Plaintiffs rely upon the doctrine of res ipsa loquitur, and, admitting that no actual negligence was proved, contend that negligence sufficient to make a prima facie case could be implied from the collapse of the structure itself.

The rule is stated as follows: "Where the thing which...