Moordale v. Park Circuit & Realty Co.

• Decision Date: 08 September 1931
• Docket Number: No. 21629.,21629.
• Court: Missouri Court of Appeals
• Parties: MOORDALE v. PARK CIRCUIT & REALTY CO.

41 S.W.2d 829

MOORDALE v. PARK CIRCUIT & REALTY CO.

No. 21629.

St. Louis Court of Appeals. Missouri.

September 8, 1931.

Rehearing Denied September 29, 1931.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Frank Moordale, by Amelia Moordale, as his next friend, against the Park Circuit & Realty Company. A demurrer to the petition was sustained, and plaintiffs appeals.

Reversed and remanded.

Joseph Reilly, of St. Louis, for appellant.

Carter, Jones & Turney and Smith B. Atwood, all of St. Louis, for respondent.

BECKER, J.

The defendant's demurrer to plaintiff's petition for damages for personal injuries having been sustained, plaintiff declined to plead further, and in due course appealed from the resulting judgment. We set out the petition in full as follows:

"Comes now the plaintiff and files this, his fourth amended petition, by leave of Court first had and obtained.

"Plaintiff states that he is a minor of the age of eighteen years, that his mother, Amelia Moordale, was duly appointed as his next friend for the prosecution of this suit; that the defendant Park Circuit and Realty Company is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the State of Missouri, and that the defendant maintained and conducted a park, known as Forest Park Highlands, in the City of St. Louis, where amusements and entertainments were provided for the attendance of the general public. That, among other things, the defendant maintained in said park a certain mechanical device provided with a bag inflated with air, attached to, and suspended from a chain, a dial to register the force of a blow delivered against said bag with the fist, and a slot for the reception of pennies; that the public was invited by the defendant to try its strength and power by striking the said bag with the fist; that a charge of one penny was exacted for the privilege of striking the said bag.

"Plaintiff further says that on the 15th day of April, 1928, he accepted the said invitation of the defendant to use the said device, placed a penny in the said slot, lowered the said bag and struck the said bag with force with his fist; that the said bag, when struck, as aforesaid, struck against the said dial, rebounded and struck the plaintiff with great force on his left arm, between the shoulder and the elbow thereof, thereby breaking the humerus of his said arm, between the shoulder and the elbow. That the defendant was negligent in inviting the plaintiff to use the said machine aforesaid without warning and instructing the plaintiff of the danger of being struck and injured by the said bag, when the said bag would rebound; that the defendant negligently failed and neglected to warn the plaintiff of said danger, and that said danger was not known, or discoverable to the plaintiff by the exercise of ordinary care on his part, and that by reason of the said negligence of the defendant the plaintiff was directly caused to receive the injury aforesaid; that by reason of his said injury and...