Murphy v. Steeplechase Amusement Co.

• Decision Date: 16 April 1929
• Citation: 250 N.Y. 479,166 N.E. 173
• Parties: MURPHY v. STEEPLECHASE AMUSEMENT CO., Inc.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 479

166 N.E. 173

MURPHY

v.STEEPLECHASE AMUSEMENT CO., Inc.

Court of Appeals of New York.

April 16, 1929.

Action by James Murphy, an infant, against the Steeplechase Amusement Company, Inc. From a judgment of the Appellate Division (224 App. Div. 832, 231 N. Y. S. 826), affirming by a divided court a judgment of the Trial Term on the verdict of a jury for plaintiff, defendant appeals.

Reversed, and a new trial granted.

O'Brien, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Gardiner Conroy and Reginald S. Hardy, both of Brooklyn, for appellant.

Charles Kennedy, of New York City, for respondent.

CARDOZO, C. J.

The defendant, Steeplechase Amusement Company maintains, an amusement park at Coney Island, N. Y. One of the supposed attractions is known as ‘the Flopper.’ It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly moving escalator that is common is shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name, above the gate, ‘the Flopper,’ was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff's wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. ‘I took a chance,’ she said when asked whether she thought that a fall might be expected.

Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb, in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard, or other device to prevent a fall therefrom. No other negligence is charged.

We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment. Matter of Case, 214 N. Y. 199, 108 N. E. 408;Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, 15, 52 N. Y. S. 1051;Id., 164 N. Y. 586, 58 N. E. 1087;Foley v. Boston & M. R. R. Co., 193 Mass. 332, 335, 79 N. E. 765,7 L. R. A. (N. S.) 1076;Work v. Boston Elevated R. Co., 207 Mass. 447, 448, 93 N. E. 693; N. & W. Ry. Co. v. Birchett (C. C. A.) 252 F. 512, 515, 5 A. L. R. 1028. But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen. Lumsden v. L. A. Thompson Scenic Ry. Co., 130 App. Div. 209, 212, 213, 114 N. Y. S. 421.

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. Pollock, Torts (11th Ed.) p. 171; Lumsden v. L. A. Thompson Scenic Ry. Co., supra; Godfrey v. Connecticut Co., 98 Conn. 63, 118 A. 446;Johnson v. City of New York, 186 N. Y. 139, 148,78 N. E. 715,116 Am. St. Rep. 545,9 Ann. Cas. 824;McFarlane v. City of Niagara Falls, 247 N. Y. 340, 349, 160 N. E. 391, 57 A. L. R. 1; cf. 1 Beven, Negligence, [250...