Murphy v. Electric Park Amusement Co.
| Decision Date | 06 March 1922 |
| Parties | KATIE MURPHY (ROARK), Respondent, v. ELECTRIC PARK AMUSEMENT CO., and RUFUS BRAINERD, Appellants |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.
AFFIRMED.
Judgment affirmed.
Hogsett & Boyle for respondent.
Frank Hagerman and Henry L. Jost for appellants.
This is an action in damages for personal injuries alleged to have been received from a device, or slide, connected with, and part of a concession in an amusement park.
Defendant Electric Park Amusement Company, a corporation, is the lessee of a certain tract of ground which is devoted to public park purposes and public amusements in the City of Kansas City, Missouri, and commonly known as Electric Park. Certain parts of said leasehold are subleased on a basis of thirty per cent of the gross receipts as rental therefor.
Defendant Brainerd and one McGuire became such sub-lessees of a tract of this ground upon which they erected buildings and enclosures which they called the "Bug House," for admission to which a fee was charged and wherein a number of devices, intended for amusement of patrons, were located within a room about fifty feet square. One of these devices consisted of a chute, located at the southeast corner of said building, near the south wall thereof. This chute was a wooden structure throughout, with no mechanical appliances. Its peak height was about twenty feet, its length about fifty feet, with a sliding surface, three to four feet in width which was perfectly flat, of highly polished maple and designed for speed. From the peak height there was a sharp descent toward the lower end where the exit was made, which said end was about twenty inches above the floor. Not far from the exit there was an abrupt curved hump arranged in the chute for the purpose of diminishing the velocity obtained by a body descending to that point. The sides of the chute were about eight inches higher than the sliding surface.
At the foot of the chute, and against the end thereof, were kept two thin pads, one on top of the other, each about eight feet in width, fifteen feet long and three inches thick. On top of these was kept a third pad, or tick, about eleven feet long and five feet wide, filled with straw to a thickness of about sixteen inches. A patron using the slide would ascend to the peak by a stairway running along its side and, on reaching the top, would step over to the slide, sit down and then release, or push, himself to a start.
An employee was kept at the top of the stairway to direct the movement of persons descending so that a patron finishing his slide would have time to move away from the foot thereof before another was permitted to start. Another employee was stationed at the bottom, beside the pads, to see that those who finished the slide moved promptly out of the way. The testimony tends to show that this last-named employee also assisted patrons in alighting and kept the pads and straw tick in proper place. Every part of the device, including the starting and stopping facilities, was in plain view.
Plaintiff, a woman forty-six years of age, was injured on the evening of July 27, 1919, while sliding down the chute. Her testimony is to the effect that in making the descent, by reason of the excessive width of the chute, her body was turned sideways and, in alighting, her right foot was turned under her, in which position she was allowed to alight without being caught by the attendant at the bottom of the slide; that she thereby landed upon the floor, the pads not being in place and that by reason thereof, the bones in her right leg and in and about the ankle joint were crushed and fractured, and her left foot and ankle were injured.
The amended petition alleges three grounds of negligence, i. e. (1) the chute was too wide to be reasonably safe for persons using the same, and in that respect, was negligently constructed; (2) at the time plaintiff slid down the chute, the pads or mattresses at the bottom, designed to catch patrons, were not in proper position for such purpose, and that the attendant in charge of the chute had negligently allowed the same to become displaced. (3) That it was the duty of the attendant at the bottom of said chute, in the exercise of ordinary care, to catch persons as they came out at the end of said chute, and that he carelessly and negligently failed to catch plaintiff at said time and place.
Defendants filed a motion to strike out specified portions of plaintiff's amended petition, which said motion was by the court overruled. Thereafter defendants filed their separate answers, each of which was, first, a general denial, and, as a special defense the defendant Electric Park Amusement Company alleged that it did not own, maintain, or have anything to do with the maintenance and operation of said amusement device, or instrumentality named in the petition; that the same was operated by a partnership, which said partnership did covenant and agree to indemnify and save harmless the defendant Electric Park Amusement Company from any and all claims for damages made against it, by any person, for injuries or damages due to negligence on the part of said partnership. The answer also contained a plea of contributory negligence and assumption of risk.
The separate answer of defendant Brainerd, as special defense, charges the device complained of was owned and operated by defendant Brainerd and one John T. McGuire, as co-partners, under the firm name of R. H. Brainerd & Co., and that there is a defect of parties defendant, in that said John T. McGuire is a necessary party for a proper determination of this cause, in so far as said partnership is concerned, and that Brainerd, separate and apart from said partnership, had no interest in, or connection with, the ownership, management and conduct of said amusement device. This answer also contained pleas of contributory negligence and assumption of risk.
The trial was to a jury, resulting in a verdict for plaintiff against both defendants, in the sum of $ 1500.
Defendants offered separate demurrers at the close of plaintiff's evidence, which were overruled. Thereupon, defendant Brainerd filed a motion in his own behalf to dismiss and discharge him because of the variance alleged in his answer, which said motion was by the court overruled. Separate motions for new trial and in arrest were filed by defendants and overruled by the court. Both defendants appealed.
The first assignment of error is that a peremptory instruction should have been given as asked separately by both defendants. In support of this position defendants urge (a) that the evidence showed without conflict that the device was contructed, maintained and operated as similar devices were constructed, maintained and operated, and thus the evidence negatived the existence of negligence, instead of establishing it; (b) that the device was plainly visible and known to plaintiff, and that she assumed the risks and damages incident to its use.
The testimony shows the chute was from three to four feet in width and the petition charges that by reason of such width the device was negligently constructed. This is the only charge of faulty construction and it is based upon the contention that it was wider than necessary to hold comfortably, in an upright position, the body of a person sliding down, without allowing it to turn sideways. It is shown that plaintiff, in making the descent, for some reason not clearly shown, turned, or was turned, sidewise and was thereby injured.
Defendant Brainerd testified that persons did not turn sideways in the chute "unless they lost their nerve," and explained he meant by that, unless they "get scared, get going too fast and try to stop." This witness further stated the construction of the chute was such that there was nothing to hold the body in the position in which it started and that a person would not turn sideways if he were expert enough to hold his body perfectly rigid. He testified, further, that persons descending the slide strike in all sorts of shapes "because they don't keep their nerve on the come down and try to hold themselves back." And that if a person sliding should happen to put his hand down on the chute and try to hold himself back, he would turn sideways.
On this point there is no conflict in the evidence, the contention of plaintiff being that the construction of the slide was such that persons descending could, and sometimes did, come down sidewise, and that such construction was negligent. Defendant insists that the construction was the same as is ordinarily used in the same, or similar, devices, and that, therefore, it was not faulty. There was evidence that users of the chute in question came down in all sorts of positions.
The second charge of negligence is that the pad, or mattress, at the bottom of the chute was allowed to become displaced and that by reason of such displacement, plaintiff landed on the ground, instead of the mattress. There was substantial evidence to this effect.
Defendant argues that the evidence so adduced falls far short of furnishing a basis from which the jury might infer that the slide was defectively constructed, or that it was any part of the duty of the attendant at the foot of the slide to arrest the progress of persons descending the chute, or that he actually performed any such service; or that the mats at the bottom of the chute...
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