Moordale v. Park Circuit & Realty Co.

• Decision Date: 04 April 1933
• Docket Number: No. 22382.,22382.
• Court: Missouri Court of Appeals
• Parties: MOORDALE v. PARK CIRCUIT & REALTY CO.

58 S.W.2d 500

MOORDALE v. PARK CIRCUIT & REALTY CO.

No. 22382.

St. Louis Court of Appeals. Missouri.

April 4, 1933.

Rehearing Denied April 18, 1933.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be published in State Reports."

Action by Frank Moordale, by Amelia Moordale as next friend, against the Park Circuit & Realty Company. From judgment for plaintiff, defendant appeals.

Affirmed.

Carter, Jones & Turney and Richard S. Bull, all of St. Louis, for appellant.

Joseph Reilly, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries. The case was here on a former appeal. The opinion disposing of the case on the former appeal is reported in 41 S.W.(2d) at page 829. The case was here then on a demurrer to the petition. The court held the petition sufficient, and reversed and remanded the cause. In due course a trial of the cause was had, with a jury, resulting in a verdict and judgment for plaintiff for $1,500. Defendant appeals.

At the time of plaintiff's injury, and prior thereto, the defendant, Park Circuit & Realty Company, 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. Defendant maintained, among other things, in its park a mechanical device provided with a punching bag, attached to, and suspended by, a chain. There was a dial to register the force of a blow delivered against the bag with the fist. The purpose of the bag was to test the force of a blow delivered by the fist. The bag when not in use was held in a cage at the top of the device. A charge of a penny was made for the use of the bag. A person desiring to use the bag put a penny into a slot. This released the bag from the cage, and it dropped down into a position to be struck with the fist. When the bag was struck, the blow would project it against a registering device, which registered the force of the blow on the dial, and the bag was then, by some mechanical contrivance, returned to the cage.

On April 15, 1928, plaintiff was a visitor in defendant's park. He was then sixteen years of age, and apparently in the best of health. He went, with companions, to the place where the punching bag in question was kept for the use of the general public. He placed a penny in the slot, thus releasing the punching bag from its cage. He then took a position directly in front of the machine, and struck the bag a hard blow with his fist. The bag struck the registering device, rebounded, and struck plaintiff on the left arm and broke it between the elbow and the shoulder. It is for this injury that plaintiff brings and prosecutes this suit.

Defendant assigns error for the refusal of its instruction in the nature of a demurrer to the evidence.

This punching bag machine was offered for use to any one who desired to test his strength upon delivering a penny in the slot. No directions or warnings of any danger of being struck by the rebound of the bag were posted in or about the machine, or otherwise given, though persons of all ages and conditions, women and children as well as men, the inexperienced as well as the experienced, were invited to make use of the machine. Plaintiff had never had any experience with any sort of punching bag. He knew nothing about defendant's machine, and had never seen it before, or one like it. There was no one present to instruct him, or warn him of danger, and he was given no warning whatever.

This court, in disposing of the case when it was here before, said:

"That there was danger of being injured by the rebound of the bag appears from the fact that the rebounding bag broke plaintiff's arm.

"Plaintiff, a minor, by his petition alleges that in making use of the device there was danger of being struck and injured by the bag upon its rebound, and that the defendant negligently failed to warn him of such danger, and that such danger was not known nor discoverable to him by the exercise of ordinary care on his part, and that, by reason of said negligence on the part of the defendant, the plaintiff was directly caused to receive certain injuries.

"It cannot be ruled as a matter of law that the likelihood that the punching bag, when struck, would rebound and injure the striker was necessarily so obvious that a minor who had had no previous experience with such device must be held to have realized the danger and to have voluntarily subjected himself thereto; but the situation presents instead a question as to whether or not defendant, by the exercise of reasonable care, should have anticipated the likelihood of injury to such user of the device, absent some warning of the none too obvious danger. See Smiley v. Jessup (Mo. App.) 282 S. W. 110, and cases therein cited. We are therefore constrained to the view that plaintiff's petition states a cause of action, and that the trial court erred in sustaining defendant's demurrer thereto."

This leaves little else to be said so far as concerns the refusal of defendant's demurrer to the evidence. It is true that the evidence tends to show that the plaintiff's arm was not a normal arm, in that the humerus, which was broken, contained a cyst, which weakened the bone so that it would be more apt to fracture than a normal bone. Dr. Klinefelter testified that an X-ray taken of the arm after it was broken showed a dark line which he thought was a cyst. He also stated that he thought the cyst had existed for a year or more. He said, too, that a person having a cystic bone would usually know it, or know there was something wrong. Plaintiff testified that he did not know there was anything wrong with his arm. His mother also testified that he had always been in good health, and that she never at any time saw any indication of anything being wrong with his arm. Dr. Klinefelter did not...