Rathbun v. Humphrey Co.

• Decision Date: 24 February 1953
• Citation: 113 N.E.2d 877,94 Ohio App. 429
• Parties: , 65 Ohio Law Abs. 455, 52 O.O. 145 RATHBUN v. HUMPHREY CO.
• Court: Ohio Court of Appeals

Page 429

94 Ohio App. 429

113 N.E.2d 877, 65 Ohio Law Abs. 455, 52 O.O. 145

RATHBUN v. HUMPHREY CO.

Court of Appeals of Ohio, Cuyahoga County.

Feb. 24, 1953.

Rehearing Denied March 23, 1953.

Gaines & Hirsch, Cleveland, for plaintiff appellant.

Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant appellee.

HURD, Presiding Judge.

This is an action of tort instituted by plaintiff in the Court of Common Pleas to recover for personal injuries received during a ride upon an amusement device. Plaintiff appeals from a judgment entered pursuant to a jury verdict for defendant.

Defendant, The Humphrey Company, owns and operates an amusement park in the city of Cleveland known as Euclid Beach Park. One of the attractions is a roller coaster called the 'Thriller'. It is composed of three separate cars, with four seats each joined together in a train. The train operates on rails supported by a trestle, built in the form of declivities, dips and curves. It is pulled by a chain from the loading platform to the top of the trestle. From there it descends by force of gravity. The ride covers a distance of about 2,800 feet in about two minutes.

Plaintiff, a young woman of about 32 years of age, entered the Thriller with her mother. They occupied the first seat of the second car, the mother to the right or outside, the daughter to the left or inside. The car ahead was filled to capacity with eight persons. The seats in back of plaintiff in the second car were wholly or partially filled. Plaintiff testified that as they were approaching the return curve, she turned slightly to her mother and told her to scream as they were approaching a series of dips. Plaintiff testified further that when she was thus turned slightly to her right, a branch of a tree suddenly whipped down from foliage overhanging the track area on the return or lower curve striking her forehead, nose and left eye, breaking her eyeglasses in such a manner that the left lens was shattered and the frame fell into her mother's lap. She claimed that she was seriously injured because pieces of the shattered lens lodged in her eye.

Six grounds of error were assigned, two of which were abandoned in this appeal. Combining the first two assignments of error, plaintiff asserts--(1) that the trial court erred prejudicially in permitting the manager of the Thriller to testify that during the summer of 1948 up to and including September 26, 1948, the date of the injury, no person had ever complained to him of having been struck by a branch or limb of a tree during a ride, and (2) in permitting defendant to introduce testimony of the number of persons who rode the roller coaster on the day of the injury.

The courts are divided on the question of the admissibility and competency of evidence showing non-occurrence or absence of other similar accidents in negligence cases generally. Some hold that such evidence is not admissible for the purpose of showing that the place of injury was free from danger. Others hold that such evidence is admissible for that purpose and that it tends to show reasonable care, thus negativing to a certain degree the charge of negligence. In any event, such testimony is admissible only if it has rational probative value bearing upon the issues made upon the pleadings. It is never conclusive, the persuasive effect or weight being for the jury alone under proper instructions. As a general rule, such testimony is admitted as applicable to static where the danger is not obvious.

Considering now the issues made by the pleadings in the instant case, the plaintiff alleges and the defendant denies, (1) that the proximate cause of her injuries was the negligence of the defendant in failing to provide a route of travel which was reasonably safe for patrons to use; (2) in designing, operating and maintaining the Thriller in close proximity to abutting and overhanging trees; (3) in failing properly to care for said trees and to exercise vigilance to provide patrons with a ride free from danger, occasioned by the presence of such trees wholly under the control and management of the defendant; (4) in permitting said tree and the branches thereof to become a source of danger to patrons using said roller coaster; (5) in failing to warn plaintiff of the danger.

From these allegations it appears that plaintiff has created an issue as to the static condition of the amusement device in relation to external conditions surrounding its design, operation and maintenance in the particular location close to overhanging and abutting trees. Was this operation as there conducted safe for patrons, or, was it dangerous? How is this question to be determined? Is not experience a definite criterion, persuasive but not conclusive? We think so. True, it is as plaintiff argues that her claim is not based on any mechanical defect in the Thriller as such, nor is there any claim of improper mechanical construction. This removes from consideration the doctrine of res ipsa loquitur, but it does not remove from consideration the claim that the design, operation and maintenance of the device as located was dangerous for patrons under the static conditions there existing and upon which the claim of negligence is predicated.

In Cleveland & Buffalo Transit Co. v. Roderick, 1918, 10 Ohio App. 119, evidence of non-occurrence of similar accidents was held admissible for the purpose of showing defendant not guilty of negligence in not apprehending the accident where the danger was not obvious. In that case this court reversed and remanded for prejudicial error in excluding such testimony.

In Witherspoon v. Haft, 1952, 157 Ohio St. 474, 106 N.E.2d 296, the court, in affirming a judgment of the Court of Appeals of Franklin County, said, in relation to the test of experience, 157 Ohio St. at page 480, 106 N.E.2d at page 300, 'and none of the witnesses who testified concerning their experience with this type of bleachers knew of any accident resulting from a seat board slipping out of its brackets.' In the same case, 157 Ohio St. 474, 103 N.E.2d 275, the Court of Appeals had previously held that testimony of many years of experience with the same type of bleacher seats involed in that case was admissible as to non-occurrence of accidents, but not conclusive. Citing Cleveland, Akron & C. Ry. Co. v. Anderson, 11 O.C.D. 765.

In Murphy v. Steeple Chase Amusement Co., 1929, 250 N.Y. 479, 166 N.E. 173, 175, where plaintiff sued for injuries sustained while using an amusement device known as the 'Flopper', Cardozo, Ch.J., refers to evidence offered by the President of the amusement company to the effect that there had never been such an accident before and that, according to defendant's evidence, two hundred and fifty thousand visitors 'were at the Flopper in a year.'

In Carlin v. Krout, 1923, 142 Md. 140, 120 A. 232, 29 A.L.R. 13, where plaintiff sued for injuries received on an amusement device known as an 'Ocean Wave', it was held that the fact that no accident similar to plaintiff's had occurred to any of the thousands of persons who had used the device, during the two years which had clapsed since its installation, while not conclusive of the absence of negligence, might properly be considered on the question whether any part of the device was improperly designed or constructed.

To the same effect see also, Godfrey v. Connecticut Co., 1922, 98 Conn. 63, 118 A. 446, Denver Park & Amusement Co. v. Pflug, 8 Cir., 1924, 2 F.2d 961.

The case of Wray v. Fairfield Amusement Co., 126 Conn. 221, 10 A.2d 600, is cited by plaintiff as being contra, but that case should be distinguished because there the evidence of the number of passengers who had ridden the amusement device was excluded because the strap of one seat, which plaintiff had occupied, was defective and evidence of the entire number who had occupied other seats not defective would not be a reasonable test of experience, particularly in view of the fact that the plaintiff did not claim that either the construction or operation of the roller coaster in general was negligent.

We think also, that it should be noted that the superintendent of construction and maintenance for twenty-eight years and the man who built the Thriller, called as one of plaintiff's witnesses, was permitted to testify without objection on cross-examination by the defendant that, in his years with the defendant, it never had been brought to his attention by any person that any rider on the...