Park Circuit & Realty Co. v. Ringo's Guardian

• Decision Date: 02 February 1932
• Parties: PARK CIRCUIT & REALTY CO. v. RINGO'S GUARDIAN.
• Court: Kentucky Court of Appeals

46 S.W.2d 106

242 Ky. 255

PARK CIRCUIT & REALTY CO. v. RINGO'S GUARDIAN.

Court of Appeals of Kentucky

February 2, 1932

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Suit by Durwood W. Ringo's guardian against the Park Circuit &amp Realty Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Hite H Huffaker and John R. Moremen, both of Louisville, for appellant.

William F. Clarke, Jr., and W. W. Downing, both of Louisville, for appellee.

RICHARDSON J.

The Park Circuit & Realty Company, a corporation, in July, 1927, owned and operated a swimming pool at Fountain Ferry Park, in Jefferson county, Ky. Its pool was 60 feet by 200 feet. Near the east end where the water was shallow a "water wheel" is located, which is used by its patrons for sporting in the water. It is located about 8 feet from the wall of the pool. To reach the wheel, a ladder extending from the bottom of the pool to the platform near the top of the wheel is used. On reaching the top, a bather may walk out on the wheel and sit, stand, or occupy it in any position he may choose. The movement of the bather starts the wheel to revolving, and carries or throws the bather as he may desire into the water. The wheel is 6 or 7 feet in diameter, 12 or 14 inches in width, with a platform from 20 to 24 inches in width extending on each side of the wheel. The wheel dips about 10 or 12 inches below the water, and extends about 9 or 10 feet above its surface.

An admission fee is charged and collected from the bathers by the appellant for their use of the pool. The appellee, Durwood W. Ringo, was in July, 1927, fourteen years old, and a frequent patron of the pool. He states that he did not use or enjoy the wheel; his sport was swimming. He had acquired the ability to swim with skill. On or about the 10th day of July, 1927, while engaged in swimming between the wheel and the wall of the pool--a space of about 8 feet--another person walked or stepped on top of the wheel. Ringo claims this person slipped "off the boards of the wheel and fell," his chin striking Ringo, his teeth cutting and lacerating the scalp an inch or inch and a half in length, near the top of his head on the right side. Ringo claims he was thereby dazed but managed to get out, over the edge of the pool.

The question in the case of first importance is the alleged negligence, if any, of the Park Circuit & Realty Company, as the primary and proximate cause of the appellee's injury. After setting out in his petition a description of the water wheel, its size, construction, and operation, he charges that "the construction and operation of the wheel is dangerous to the life and limbs of the patrons of the defendant and to the persons using the said device," and that its use makes the swimming pool unsafe and a dangerous place; that appellant had knowledge or could have had knowledge of this danger, by the exercise of ordinary care; that "a performer on the wheel" slipped, fell sidewise from the said wheel, and struck his (Ringo's) head with great force and violence, which, he avers, was a consequence of the negligence of the appellant.

To prevent a recovery the appellant traversed the petition and in the second paragraph of its answer interposed contributory negligence as a defense.

At the conclusion of the appellee's evidence the appellant requested the court to give to the jury a peremptory instruction to find for it, which was refused. Its right to this instruction necessarily depends upon the evidence in behalf of appellee. A careful consideration and scrutiny of the evidence in his behalf convinces us that a peremptory instruction should have been given. The appellee is the only eyewitness to the transaction occurring at the time he received his injury. His testimony in relation thereto is in substance as follows: After engaging in diving in the deeper water, he came toward the end of the pool in the vicinity of the water wheel, and while swimming between the wheel and the wall of the pool, a young man unknown to him climbed on top of the wheel, slipped, fell, and struck him on the head. To be absolutely accurate, we here give certain questions propounded to and answered by appellee, as follows:

"Q. How long has this wheel been in the pool? A. They have had it there ever since I have been going down there.

Q. Ever since it was built? A. Yes, I had never been around it though, I didn't like the idea.

Q. You never rode on that wheel? A. No sir.

Q. When did you last examine the wheel in this pool? A. I don't remember that.

Q. When did you find slime on that wheel? A. The very first time I went over there.

Q. You don't know how long that was before this accident? A. No.

Q. What kind of slime was there on the wheel? A. The same kind of slime that is on anything subjected to water for any length of time.

Q. What kind of slime? A. It was colorless on top.

Q. How thick was the slime? A. I don't know, I know it was slippery. ***

Q. You saw someone fall off? A. I saw somebody was coming between me and the wheel.

Q. You saw them coming down all the way you were swimming from the top end of the pool up to the wheel? A. Yes sir.

Q. How carefully did you observe the person who fell from the wheel or jumped from the wheel on you? A. The only time I had to see him was when he was coming down on me."

Accepting this testimony of appellee, it cannot be said that he was stating any more than merely his opinion when he stated on his examination in chief that "the boards on the wheel were slippery; that there was a kind of green, slimy substance or water growth on the wheel" at the time the person fell and struck him. His statement that he "slipped off the boards up there--fell sidewise off the wheel, *** and struck me on the head," amounts to no more than his opinion. For the reason his testimony discloses the fact that previous to, and at the time of, the accident, the appellee had neither time nor opportunity to ascertain and to know whether the boards on the wheel were "slippery" or covered with "green" or any colored slime. It is equally as true that his statement that the person who fell upon him slipped and by reason thereof fell is not a statement of fact. It should be conceded that the opinion of this witness that the boards on the wheel were, at that time, covered with algae or slime, and that the person slipped and fell, does not establish negligence on the part of appellant, sufficient to rest the verdict of the jury. The sudden falling of the person onto the appellee may have been caused by something other than the wheel itself or something with which appellant had no connection. Excepting the appellee's opinion, so far as the evidence shows or tends to show, the person who fell upon him might have done so of his own volition, in utter disregard of his safety, or as a result of youthful aberration, or from the use of spiritus frumenti or some other cause which might be conjectured by an active, diligent, and fertile imagination. Under the showing made in this case, the actual, real cause of the falling of the person from the wheel onto appellee is a matter of mere surmise, conjecture, or speculation which is insufficient to rest a verdict upon [ Wiley's Adm'r v. C. & O. R. R. Co., 232 Ky. 15, 22 S.W.2d 263; Hanor v. West Kentucky Coal Co., 241 Ky. 163, 43 S.W.2d 689; Fee's Adm'x v. Mahan-Ellison Coal Corp., 241 Ky. 231, 43 S.W.2d 681], and the circumstances show that only the person who fell could have actual, direct, positive knowledge of the real cause of his falling from the wheel. Negligence, like any other fact, may be proven by circumstances, but it cannot be said that the appellee even states circumstances showing any negligence of the appellant, or any tangible fact.

The appellant was only required to use ordinary care to maintain its wheel in a reasonably safe condition for its customers, and to exercise ordinary care for their safety, when using it or its premises. Majestic Theater Co. v. Lutz, 210 Ky. 92, 275 S.W. 16; Kroger Grocery & Baking Co. v. Monroe, 237 Ky. 60, 34 S.W.2d 929; Wall v. Woolworth Co., 209 Ky. 258, 272 S.W. 730; Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S.W. 22; Maehlman v. Reuben Realty Co., 32 Ohio App. 54, 166 N.E. 920, 921; Higgins v. Franklin County Agricultural Society, 100 Me. 565, 62 A. 708, 3 L.R.A. (N. S.) 11...