Powers v. Huizing

• Decision Date: 18 March 1968
• Docket Number: No. 3,Docket No. 2803,3
• Citation: 9 Mich.App. 437,157 N.W.2d 432
• Parties: Roy L. POWERS and Shirley Powers, Plaintiffs-Appellees, v. Louis HUIZING and Joan Huizing, d/b/a Hula Heights, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 432

157 N.W.2d 432

9 Mich.App. 437

Roy L. POWERS and Shirley Powers, Plaintiffs-Appellees, v. Louis HUIZING and Joan Huizing, d/b/a Hula Heights Defendants-Appellants.

Docket No. 2803.

Court of Appeals of Michigan, Division No. 3.

March 18, 1968.

Released for Publication April 5, 1968.

Laurence D. Smith, Schmidt, Smith, Howlett & Halliday, Grand Rapids, for appellants.

Alexander S. Jarosz, Grand Rapids, for appellees.

Before FITZGERALD, P.J., and BURNS and HOLBROOK, JJ.

HOLBROOK, Judge.

Plaintiffs, Roy and Shirley Powers, husband and wife, brought suit against defendants Louis and Joan Huizing, doing business as 'Hula Heights,' to recover for injuries sustained by Shirley Powers while tobogganing at Hula Heights. The trial court sitting without a jury entered a judgment for plaintiffs. Defendants appeal from the trial court's denial of their motion to vacate judgment.

The pertinent facts are as follows: Defendants maintained near Husdonville, the Hula Heights toboggan run containing 6 concrete chutes designed to guide toboggans down a slope along predetermined paths. Each chute was constructed with curbing on both sides to prevent the descending toboggans from deviating from their paths. Ice was built up on the chutes by a slow process of water spraying and natural freezing. The accident occurred on the evening of December 26, 1960, after unseasonably warm weather with temperatures ranging up to 41 debrees the day before and 38 degrees at 4 a.m. on the day in question according to the records of the Kent county weather station.

Plaintiffs and 2 other couples arrived together at the toboggan run at about 8:30 p.m., paid the admission fee, and proceeded down one of the iced chutes on a toboggan furnished by defendants. There was testimony by several of the participants in the group going down on this particular ride that as the toboggan reached the bottom of the first hill at a high rate of speed, the sound of wood grating on concrete was heard, the rate of speed was sharply reduced, the toboggan veered to one side, then to the other and jumped the curbing, leaving only 2 of the 6 riders remaining on the toboggan. Mrs. Powers was one of those thrown from the toboggan and as a result, suffered a knee injury. There was abundant uncontradicted testimonial evidence that at the point of sudden deceleration the chute was covered with slush for at least several feet.

One of the participants, Mrs. Brown, who had many years of tobogganing experience, testified that she believed the slush slowed down the toboggan and caused the accident resulting in plaintiff's injuries. Mr. Van Til, a former chute attendant at defendants' toboggan run, who also had extensive previous experience in tobogganing, agreed from the witness stand that slush at the bottom of the hill would tend to slow down the toboggan. Defendant, Louis Huizing, admitted that slush on a run has the effect of slowing down a toboggan. He testified, however, that he believed the accident was caused by a deliberate rocking and twisting of the toboggan by the lead man to give the group an extra thrill. The lead man, Mr. Mersman, and other members of the group testified that this was not true.

Three questions are raised for review which can be stated as follows:

(1) Was there sufficient testimony to permit the trial court to properly find that the defendants failed to exercise ordinary care either with respect to the maintenance of their facility or the giving of warning of possible danger that they knew or should have known about by proper inspection?

(2) Did the trial court improperly apply Res ipsa loquitur in holding defendants liable?

(3) Could the plaintiffs sustain their burden of proof without any expert testimony and in the face of defendant Louis Huizing's expert testimony that slush on a toboggan slide would not affect a toboggan loaded with 6 adults traveling 50 to 60 miles per hour?

The trial judge in his written opinion made the following finding:

'The finding, by the court, of the presence of slush at the bottom of the slide is tantamount to a finding that the work of creating ice and the inspection made at that time was faulty. There was evidence that the preceding two days had been warm and that by reason of this fact slush would have been created during the warmth of the daytime which conditions would have to be dealt with in (the) cool of the evening before the chutes could have been used with safety.

The fact that a toboggan with one person aboard made the descent in safety does not alter the court's finding that slush was encountered on the following descent when the toboggan was occupied by 6 grown persons. The increased weight certainly would account for the different...