Reinzi v. Tilyou

• Decision Date: 19 November 1929
• Citation: 169 N.E. 101,252 N.Y. 97
• Parties: REINZI v. TILYOU et al. (two cases).
• Court: New York Court of Appeals Court of Appeals

252 N.Y. 97

169 N.E. 101

REINZI

v.TILYOU et al. (two cases).

Court of Appeals of New York.

Nov. 19, 1929.

Actions by Michael Reinzi and by Frances Reinzi against George C. Tilyou and the Tilyou Realty Company, Inc. Judgments for plaintiffs at Trial Term, entered on the verdict of a jury, were affirmed by the Appellate Division (226 App. Div. 754, 233 N. Y. S. 871), and defendant appeals.

Judgments affirmed.Appeal from Supreme Court, Appellate Division, Second department.

William Dike Reed and K. Courtenay Johnston, both of New York City, for appellants.

Thomas J. O'Neill and Charles D. Lewis, both of White Plains, for respondents.

POUND, J.

The plaintiffs offered evidence from which the jury might find the following facts:

The plaintiff Michael Reinzi went with his wife, the plaintiff Frances Reinzi, on July 3, 1924, to seek recreation on the steeplechase horses at Steeplechase Park, Coney Island, operated by the defendant appellant as an amusement park. The steeplechase horses are wooden horses constructed to carry two riders. They operate by gravity on an incline track 1,400 feet long and go up and down, straightaway, and around curves in sets of four horses each. A race is thus simulated, giving to the riders the thrill of competitive action on galloping horses, but the riders have no control over the speed of their chargers. The horses are constructed so that the front rider has a bar of iron bolted to the horse resembling a set of bridle reins, or an iron crossbar 11 inches wide connecting the reins, to hold on with his hands, and iron supports on each side resembling a stirrup in which to put his feet. The rear rider is left to hold onto the front rider. A bar of iron on either side furnishes a support for his feet.

Reinzi and his wife were in weight somewhat above the standard for their height. He weighed 230 pounds and his wife weighed 190. When they came to the place after having paid for the ride, each wanted to ride a single horse because of their weight. But the horses were built for two, and they were told to ride together on the back of one horse, and that everything would be all right. They started off, riding astride, with Mrs. Reinzi in front and her husband, mounted behind, holding onto her waist. There was nothing else for him to hold onto, as he could not reach the bar in front of his wife. After reaching the top of an incline they coasted down and had gone around a curve near the finish, when Mrs. Reinzi's right stirrup broke, and she and her husband fell off, sustaining injuries. Reinzi says he had hold of his wife, and they both fell off when she fell. The plaintiffs' theory of the case is that the stirrup broke, and that Mrs. Reinzi lost her balance and fell, carrying her husband with her. The evidence sustains a finding to that effect, and the question is whether defendant's negligence has been established as the sole cause of the accident.

At the close of the case a motion to dismiss was made, upon the ground, among others, that there was no proof of notice, actual or constructive, of the defect complained of which caused the accident, namely, the breaking of the stirrup. The motion was denied and an exception taken. This ruling was proper. Defendant's witnesses testified that the horses were regularly inspected, and that on the day of the accident everything appeared to be in good order, and that thousands of people rode them in a season, and that only one other accident was known to the manager, the circumstances of which were not shown. The question was, however, one for the jury, for a presumption of negligence arose from the mere proof that the stirrup broke in the surroundings of the...