Sand Springs Park v. Schrader

• Court: Oklahoma Supreme Court
• Writing for the Court: ELTING, J.
• Citation: Sand Springs Park v. Schrader, 198 P. 983, 82 Okla. 244, 1921 OK 207 (Okla. 1921)
• Decision Date: 31 May 1921
• Docket Number: Case Number: 10057
• Parties: SAND SPRINGS PARK v. SCHRADER et al.

1921 OK 207

198 P. 983

82 Okla. 244

SAND SPRINGS PARK v. SCHRADER et al.

Case Number: 10057

Supreme Court of Oklahoma

Decided: May 31, 1921

Syllabus

¶0 1. Negligence--Operation of Scenic Railway--Care Required. Operators of scenic railways or roller-coasters, such as are conducted in amusement parks, and take passengers thereon for hire, and being sources of peril by reason of their steep inclines, sharp curves, and great speed, owe to those who patronize them the duty to exercise the highest degree of care, skill, and diligence that it is reasonably possible to afford; keeping in mind the practical operation of the railway.

2. Negligence--"Res Ipsa Loquitur." The phrase "res ipsa loquitur" is "merely a short way of saying that the circumstances attendant upon an accident are themselves of such character as to justify a jury in inferring negligence as to the cause of the accident." ( Cohen v. Farmers' Loan & Trust Co., 127 N.Y. Supp. 564-5.)

3. Same--Action for Personal Injuries on Scenic Railway--Instructions. When two cars on a scenic railway collide, by the one in the lead ceasing to go forward, but receding and colliding with the one following it, and in a suit for personal injuries by one injured by such collision, the court applies the doctrine of res ipsa loquitur to such facts and instructs the jury that the proof of the collision raises a presumption of negligence on the part of the owners and operators of said railway, and thereby makes out a prima facie case of negligence on the part of said owners and operators, but which presumption the said owners and operators may rebut by proofs sufficient to show they were not guilty of negligence, held, such instruction is a proper application of the law and was not erroneous. Held, further, that the owners and operators may rebut this presumption of negligence by either showing the actual cause of the accident, so the jury can determine whether or not such cause could be discovered by proper inspection, or they may show that the inspection made was so careful that no defect discoverable by inspection could be overlooked. ( Cohen v. Farmers' Loan & Trust Co., 127 N.Y. Supp. 564-5.)

4. Appeal and Error--Verdict -- Right to Remittitur--Damages for Personal Injuries. When the proofs of damage are submitted to a jury under proper instructions, in a suit for personal injuries, and the verdict not being so excessive as to raise the presumption that the jury was actuated in rendering such verdict by passion or prejudice, and there being no specific proofs, otherwise, showing that the jury was so actuated, and the trial judge fails to act and enters judgment on the verdict, held, this court will not interfere with the verdict of the jury by ordering a remittitur.

5. Appeal and Error--Review--Questions of Fact--Verdict. In a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.

Stuart, Cruce & Riddle, Poe & Lundy, H. O. Bland, J. F. Sharp, and Paul P. Pinkerton, for plaintiff in error.

Bush, Moss & Owen and H. B. Martin, for defendants in error.

ELTING, J.

¶1 This action was filed in the district court in and for Tulsa county, state of Oklahoma, June 25, 1917, by the plaintiff, Nellie R. Schrader, against Chas. Page, Sand Springs Park, a corporation, and E. M. Monsell, defendants; was tried by a jury and a verdict returned in favor of the plaintiff in the sum of $ 12,958 on January 11, 1918; the appeal filed in this court July 26, 1918. This is an action by the plaintiff against the defendants in which the plaintiff prayed for a judgment in the sum of $ 20,200 for personal injury alleged to have been received by her while a passenger on a scenic railway or roller-coaster operated by one or all of the defendants; said scenic railway being located in the park under the control and management of one or all of the defendants, near Tulsa, Oklahoma. Defendant in error Schrader alleged, in substance, that at the time of the injury the defendants were operating and conducting a public amusement park, commonly known as Sand Springs Park. They were operating many devices for the amusement and entertainment of those who attended the park, which were widely advertised and among those were the roller-coaster or scenic railway, which was operated for hire, charging an admission fee. On this scenic railway were operated something like nine cars; each car would carry four passengers. The cars ran upon a track, the track being crooked, with sudden curves, dips, and inclines, some more steep than others, and the cars were propelled to the highest point, about 40 feet from the ground, by power and were released, after the passengers were boarded, from such highest point and started and were propelled by the force of gravitation, carrying the passengers over the curves and inclines, affording thrills, etc. The said scenic railway, at the time of said injury, was in the control and charge of the servants. agents, and employes of the defendants, the plaintiff alleged, and by reason of the carelessness, neglect, and failure to use that degree of care commensurate with the hazards and dangers of the said scenic railway which the law required in the operation of the same, the plaintiff was injured in her left foot and left lower limb. That the car that had preceded the car upon which the plaintiff below, defendant in error herein, was riding, instead of making its trip over the railway, hitting one of the elevations, began to recede, and running backwards collided with the car in which the defendant in error was riding; said cars being propelled by their own momentum and not being under the control or direction of the defendants or their agents or servants after being released, not being capable of being so controlled nor capable of being controlled by the defendant in error, the collision took place and the injury resulted to the defendant in error. The defendants answered separately, and also filed a joint answer, denying particularly the allegations of negligence and setting up the fact that they had exercised all the care that the law required of them; that the said railway had been constructed by men skilled in such work and that the same had been constructed according to approved standards of construction; had been kept in good repair and had been operated by experienced operators and under careful and continuous inspection. Proofs were introduced to the jury by the plaintiff below, defendant in error herein, proving the collision between the cars, proving the injury to the defendant in error, and the nature and extent of same. The defendants made proofs showing that one of the defendants, Chas. Page, was not the owner of said scenic railway, but that the same had been leased to one of the defendants, E. M. Monsell; there being some conflict of evidence as to whether the corporation or Monsell was the real owner and proprietor in control of said scenic railway. The trial court held that the proofs showed no legal liability as to Chas. Page, and dismissed the suit as to him; and submitted to the jury the question of liability as to the other two defendants, the said Sand Springs corporation and E. M. Monsell, and with directions that they could hold either one or both, if the evidence so warranted. The defendants introduced further evidence, for the purpose of showing the precautions, care, and diligence in the construction, operation, repair, and inspection in the operation of said scenic railway, for the purpose of showing their compliance with all the legal requirements and in satisfaction of their duties toward the patrons of said railway. There were also allegations and contentions that the defendant in error leaped from the car and thereby contributed to her injury. There was also the contention that the injury, in the beginning, was slight and that the defendant in error failed to give the injury proper treatment, and if said injury had become permanent, that it was because of the actions of the defendant in error; also contentions that the defendant in error had received compensation and satisfaction for the injury received; but all of said contentions were overruled by the court, and the question of negligence and measure of damage was submitted by the court to the jury, and a verdict was returned in the sum stated $ 12,958, against the Sand Springs corporation; Chas. Page being released by the order of the court and E. M. Monsell being released by the verdict of the jury. The defendants below, plaintiffs in error herein, at the close of the evidence of the plaintiff below, demurred to the evidence, and the trial court overruled the same. The same parties, at the close of the evidence, moved for an instructed verdict, and the court overruled the same. After the verdict of the jury, the same parties also moved for judgment non obstante veredicto, and that motion was also overruled by the trial court. In all of said rulings, we do not think the court committed any error. At the close of the trial the defendants below requested the court to give 15 instructions, which were refused by the court and such refusal was excepted to by defendants below, and the court gave to the jury 21 instructions, including a statement of the cause in his instruction No. 1, and to the giving of 18 of said instructions the defendants below excepted. The plaintiff in error, in its brief, made several assignments of error, objecting to several of the instructions given by the court to the jury; its objections being particularly directed to instructions Nos. 11, 12, and 16 given by the court, it contending that the court committed reversible error in giving those three instructions; the contention being further that the court...