Park Circuit & Realty Co. v. Coulter

• Decision Date: 14 January 1930
• Citation: 24 S.W.2d 942,233 Ky. 1
• Parties: PARK CIRCUIT & REALTY CO. v. COULTER.
• Court: Kentucky Court of Appeals

24 S.W.2d 942

233 Ky. 1

PARK CIRCUIT & REALTY CO. v. COULTER.

Court of Appeals of Kentucky

January 14, 1930

Rehearing Denied March 18, 1930.

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

Action by Betty Coulter, an infant, by her father, James Coulter, as next friend, against the Park Circuit & Realty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Robert L. Page, of Louisville, for appellee.

WILLIS J.

Betty Coulter, an infant ten years of age, by her father as next friend, instituted an action against the Park Circuit &amp Realty Company to recover damages for personal injuries. Her pleading, as amended, rested her cause of action upon the negligence of the defendant in maintaining for the amusement of its patrons an attractive and dangerous device by which injury was brought upon her. She alleged that children and other people were invited to ascend a moving stairway and descend in a sitting position over a sloping series of cylinders which turned under the weight of the body and thus brought the passenger back to the bottom. On plaintiff's second attempt to negotiate the rolls, her foot was caught by one of the cylinders near the bottom, and she was violently thrown over the side, resulting in a broken arm. There was testimony tending to show that the danger of such accidents could have been avoided by a ratchet control of the cylinders to prevent backward rolling or idling, or by a fillet between the cylinders to close the open spaces so that the feet could not be caught therein. The space between the rolls was an inch or more in width, and the bumping of the person in descending made it difficult to keep the feet elevated. The jury returned a verdict in favor of the plaintiff for $2,000, and the defendant was denied a new trial. It appeals, insisting that error intervened in several particulars which will be considered in the course of the opinion.

1. It is first argued that the court abused its discretion in denying defendant's request for a continuance on the ground that its principal witness was too ill to attend court. The affidavit filed showed that Richard Wood, as manager of Hilarity Hall at Fontaine Ferry Park, was in charge of the device which it was claimed caused the injury to plaintiff; that he was on duty at the time the accident occurred, but knew nothing of it; that he was acquainted with the condition and character of the devices and had made an inspection of the moving stairway and found it in perfect condition and free from any defects; that none of the devices were of a dangerous character, and especially that the rolling stairway was not of a dangerous character; that the rolls in the stairway moved by gravity and that the weight of the person sitting on them and sliding down propelled the cylinders; that it was impossible for any of the rolls to turn in an opposite direction; and that it was impossible for any person to catch his foot in the rolls. The affidavit further stated that some 100,000 people, mostly children between the ages of 7 and 15, rode on the moving stairway in the course of a season without accident or injury, and that no one had been injured on the moving stairway to his knowledge for a period of three years while he had been in charge of the place; that on the day of the accident approximately 2,000 people, mostly children, rode on the stairway; and that there was no injury to any one to his knowledge. The affidavit further disclosed that in addition to the operators of the various devices, adequate attendants were provided to look after the patrons, and that adequate and suitable attendants were provided at the stairway to look after the persons using it. The court permitted the affidavit to be read to the jury, except the statement therein to the effect that the other people using the stairway had not had any accidents or been injured on said stairway within the knowledge of the witness. The defendant introduced only one other witness, J. G. Faas, who was the assistant to the manager. The affidavit stated that Mr. Wood was the manager, but the witness stated that Judge Wilson was the manager. However that may be, Faas had been with the park nine seasons and was assistant manager and his duties consisted in performing anything that came up to be done. As to the amusement devices, it was his duty to see that they were in operation and in proper condition, and he did see after them every day, making inspections and keeping men in charge. He displayed a thorough knowledge of the construction and operation of the devices. None of the other attendants were offered as witnesses. There was really no controversy at the trial as to the construction and operation of the device. A model was constructed and produced before the jury and a photograph of the whole stairway was introduced in evidence. An application for a continuance is addressed to the sound discretion of the court, and its action thereon will not be disturbed unless that discretion is abused. Ordinarily the reading of the affidavit to the jury as the testimony of the absent witness is sufficient to satisfy the requirements of the law. Civ. Code Prac. § 315. There may be special circumstances, however, under which a continuance should be granted, and because of which the reading of the affidavit will not suffice. Langdon-Creasy Co. v. Rouse, 139 Ky. 647, 72 S.W. 1113, 24 Ky. Law Rep. 2095, Ann. Cas. 1912B, 292; Cox v. Spears, 181 Ky. 363, 206 S.W. 20; Madisonville, H. & E. R. Co. v. Allen, 152 Ky. 706, 154 S.W. 5; Theodore R. Troendle C. Co. v. Morgan C. C. & Mining Co. (Ky.) 114 S.

W. 312; Vincennes Bridge Co. v. Poulos, 228 Ky. 446, 15 S.W.2d 271.

An analysis of the cases will show that the circumstances must be extraordinary and of such character that failure to grant a continuance prevented the defendant from having a fair trial. But if the facts may be proven by other witnesses, and the issues are such that the affidavit meets them adequately, a continuance should be denied. Bon Jellico Coal Co. v. Murphy, 161 Ky. 450, 171 S.W. 160. No extraordinary conditions prevailed in the present case. Mr. Wood was not the only person with knowledge of the device. His affidavit disclosed that there were numerous other persons with equal opportunities for possessing the same general knowledge that he had. Furthermore, his affidavit disclosed that he could have furnished no evidence to meet the admitted fact that the device was not provided with a ratchet control or a fillet to protect the openings between the rollers, and the absence of these attachments from the device was what made its operation dangerous. The other witness displayed ample knowledge of the entire matter. We are not convinced that the court abused its discretion in denying a continuance.

But it is insisted that the court erred in striking certain words from the affidavit for a continuance before it was read to the jury. After stating that 100,000 people rode on the stairway in the course of a season, the affidavit continued "without accident or injury and that no one has been injured on said moving stairway to his knowledge while he has been in charge of Hilarity Hall during a period of three years." Faas stated that possibly 100,000 people rode on the stairway in the course of a year. He was then asked how many accidents had occurred, to which an objection was sustained, but there was no avowal as to what his answer would have been. The plaintiff had offered no testimony as to any previous accidents. It is not competent, as a general rule, to prove other accidents or injuries from the same or similar cause (Louisville & Nashville R. Co. v. Fox, 11 Bush, 495; Eskridge v. C. N. O. & T. P. R. Co., 89 Ky. 367, 12 S.W. 580, 11 Ky. Law Rep. 557; C. & O. R. Co. v. Riddle, 72 S.W. 22, 24 Ky. Law Rep. 1690) but when it is necessary to show the propensity of an animal (Murray v. Young, 12 Bush, 337), or to establish a custom, or course of conduct (Kentucky Central R. Co. v. Barrow, 89 Ky. 638, 20 S.W. 165, 5 Ky. Law Rep. 518, 6 Ky. Law Rep. 240), or to bring home to the defendant notice of a particular dangerous condition ( Georgetown & Dry Ridge Turnpike Co. v. Cannon, 12 Ky. Law Rep. 257; C. & O. R. Co. v. Meyers, 150 Ky. 841, 151 S.W. 19), evidence of other similar occurrences may be admitted. But it is not competent to prove, in an action to recover damages for a particular injury, conduct on other occasions remote from the one involved. Stevens v. Potter, 209 Ky. 705, 273 S.W. 470. In the absence of proof of other accidents, the inference would be that none had...