Park Circuit & Realty Company v. Coulter
| Decision Date | 14 January 1930 |
| Citation | 233 Ky. 1 |
| Parties | Park Circuit & Realty Company v. Coulter. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Application for continuance is addressed to sound discretion of court, and its action thereon will not be disturbed unless that discretion is abused.
2. Continuance. — Court held not to have abused discretion in denying defendant's application for continuance in action to recover for injuries sustained by plaintiff while sliding down rolling stairway in amusement house maintained by defendant, on ground that defendant's principal witness, manager of amusement house, was too ill to attend court, where other witnesses display ample knowledge of entire situation and absent witness' affidavit was read to court, since under Civil Code of Practice, sec. 315, reading of affidavit as testimony of absent witness is ordinarily sufficient.
3. Negligence — In action to recover for injuries alleged to have been sustained by defendant's negligence, it is not competent as general rule to prove other accidents or injuries from same or similar cause.
4. Appeal and Error — In infant's action to recover for personal injuries sustained while sliding down rolling stairway in amusement house maintained by defendant court's refusal to permit part of affidavit of absent witness to effect that 100,000 people rode on stairway in course of season without accident or injury, to be read to jury, if error, held harmless under Civil Code of Practice, sec. 756, in absence of proof of other accidents.
5. Negligence. — When a pleader undertakes to set forth special acts of negligence, he is bound by the specification, and may not rely on any ground of negligence not specified.
6. Negligence. — If proof of negligence substantially sustains allegations, it is sufficient.
7. Negligence. — Allegations of negligence are adequate when they are such as to enable persons of ordinary understanding to know what is intended to be relied on as basis of liability.
8. Theaters and shows. — In action by infant for injuries sustained while sliding down rolling stairway in amusement house maintained by defendant, where it was contended that defendant was negligent in not maintaining protective equipment which would prevent feet of individuals riding on stairway from catching between rollers, evidence held to sustain allegation of negligence and verdict of jury.
9. Theaters and Shows. — In infant's action for injuries sustained when her foot caught in rollers on rolling stairway while sliding thereon in amusement house maintained by defendant, it being contended that defendant was negligent in not providing protective equipment which would have prevented plaintiff's foot from catching, instruction held to submit issues of negligence made by pleading and evidence.
10. Trial. — Permitting father of infant plaintiff who was acting as her next friend to testify in case, over defendant's objection, that other witnesses had been examined, held proper, since Civil Code of Practice, sec. 606, subsec. 3, providing that person shall not testify for himself in chief, in an ordinary action, after introducing other testimony for himself in chief, does not apply to next friend of plaintiff.
11. Appeal and Error. — Court of Appeals could not have considered objection that father of infant plaintiff in action to recover for negligence, who was acting as plaintiff's next friend, remained in courtroom while other witnesses were testifying and was therefor incompetent, where record did not show whether a separation of witnesses as permitted by Civil Code of Practice, sec. 601, was required or whether father remained in courtroom during trial.
Appeal from Jefferson Circuit Court
HITE H. HUFFAKER and JOHN R. MOREMAN for appellant.
ROBERT L. PAGE for appellee.
Affirming.
Betty Coulter, an infant ten years of age, by her father as next friend, instituted an action against the Park Circuit & 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 affidavits 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. Civil Code of Practice, sec. 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...
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