Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 28056.

• Court: United States State Supreme Court of Washington
• Writing for the Court: [5 Wn.2d 601] STEINERT, Justice.
• Citation: 105 P.2d 838,5 Wn.2d 599
• Parties: SCHOCK et al. v. RINGLING BROS. AND BARNUM & BAILEY COMBINED SHOWS.
• Decision Date: 03 October 1940
• Docket Number: 28056.

105 P.2d 838

5 Wn.2d 599

SCHOCK et al.
v.
RINGLING BROS. AND BARNUM & BAILEY COMBINED SHOWS.

No. 28056.

Supreme Court of Washington

October 3, 1940

Department 2.

Action by Jacqualine Schock, Evangeline Schock, and Marian Schock, minors, by their guardian ad litem, Amos D. Schock, and Amos D. Schock, individually, against Ringling Brothers and Barnum & Bailey Combined Shows, for injuries sustained by the minors when struck by circus wagon while watching the unloading of defendant's circus. From a judgment for the plaintiffs, defendant appeals.

Reversed with directions.

BEALS, J., dissenting.

Where children, watching circus employees unload circus at railroad yard, were struck by wagon tongue when wagon rolled off platform due to breaking of a rope, and employees had repeatedly warned spectators to stay away from platform to avoid danger, circus could not be held liable for injuries to children, since it was not an insurer and in exercise of reasonable care was not required to suspend its operations until it found that every piece of machinery and equipment was free from all possible defects. [105 P.2d 840]

[5 Wn.2d 600] Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

J. P. Tonkoff, of Yakima, and John F. Reddy, Jr., of New York City, for appellant.

Snively & Bounds and Owen Clarke, all of Yakima, for respondents.

[5 Wn.2d 601] STEINERT, Justice.

Amos D. Schock brought this action on his own behalf, and as guardian ad litem of his three minor daughters, Jacqualine, Evangeline, and Marian, to recover damages resulting from injuries sustained by the three children while watching the unloading of defendant's circus within a railroad yard in Yakima. A trial to the court, sitting without a jury, resulted in findings of fact in favor of plaintiffs in varying amounts. From a judgment entered in accordance with the findings, defendant appealed.

On August 23, 1939, at about 2:30 A. M., appellant's circus arrived in Yakima, Washington, by way of the Union Pacific Railroad. A large crowd of spectators, composed of men, women, and children, numbering from two hundred to three hundred people, congregated at the railroad yard during the early morning hours to watch the circus unload its equipment. At about 7:30 o'clock in the morning, respondents Jacqualine, Evangeline, and Marian Schock arrived at the railroad yard accompanied by two women and three other children. Jacqualine was twelve years of age; Evangeline was eleven; and Marian was ten.

The railroad yard at which the circus unloaded its equipment was located in a section of the city of Yakima where the normal traffic conditions were not heavy. The east side of the yard was bounded by a high fence, or fences, beyond which was situated private property used for industrial purposes. On the west, the nearest highway was two blocks distant. Within the yard, there was a series of about six railway tracks, which ran in a generally north and south direction. The main track was the one farthest east, and was about seven feet distant from the fence referred to above. The track with which we are here particularly concerned was the second track from the east. The railroad company had given the circus company[5 Wn.2d 602] the right to use any of the tracks and any part of the railroad right of way for unloading its equipment and paraphernalia.

The circus wagons, weighing from six to nine tons each, and equipped with tongues eight or ten feet in length, were transported to Yakima on flatcars, the decks of which were forty-five inches above the rails. The wagons were unloaded in the following manner: A platform approximately fifty feet in width, from east to west, and about sixty feet long, from north to south, had been constructed by means of planks laid between, and flush with the tops of, the rails. Steel chutes, or runways, about thirty feet long, and wide enough to accommodate a wagon, led from the top of the particular flatcar which was being unloaded, to the platform on the ground. The car from which the unloading was done was stationed at the north edge of the platform. A tractor, or an elephant, was used to push the circus wagons, one at a time, to the south end of the flatcar, where a 1 1/4"' rope was attached to the wagon, and the rope was then wound around two steel capstans, or snubbing posts. The wagon, on being given a slight push to start it down the steel runway, would descend by its own momentum, its speed being controlled by a circus employee who was in charge of the snubbing rope. When the hind wheels of the wagon reached the platform, the vehicle would be brought to a complete stop by use of the rope. From that point, the wagon would be swung to the right and pushed in a westerly direction, over the platform, across the intervening tracks, and out of the railroad yard. It would then be drawn to its place of destination at the circus grounds.

The respondent girls and their companions entered the railroad yard from the [105 P.2d 841] west, and stood for a while near a telephone pole situated at or near the westerly end of the platform, and between the fourth and fifth [5 Wn.2d 603] tracks west of the boundary fence on the east. There they remained until some of the elephants came so close to them that they decided to move over toward the fence. They then proceeded eastwardly across the four intervening tracks and took a position near the south end of the fence and at a distance of fifty or sixty feet south and east of the platform. There was considerable evidence to the effect, and the trial court found, in its oral decision, that the spectators were repeatedly warned to keep away from the platform where the unloading was in progress.

The accident out of which this action arose occurred at about eight o'clock in the morning, that is, about thirty minutes after the respondent girls had arrived at the scene of events. While the girls and their companions, with other spectators, were standing at the place last indicated, one of the circus wagons was being unloaded on the second track from the east, in the manner already described. As the wagon reached a point midway down the steel runway, the snubbing rope suddenly broke, allowing the vehicle to proceed forward out of control. A circus employee who had been guiding the wagon tongue shouted to the spectators 'to run,' and himself abandoned the vehicle. The wagon proceeded down the chute, and across the platform, at a speed described by most of the witnesses as the equivalent of a 'fast walk,' and variously estimated at from two to five miles per hour. The front wheels, or at least one of them, went off the platform at its southerly edge, and almost immediately thereafter the wagon came to an abrupt stop. At the same time, the wagon tongue swung sharply to the left, describing an arc which covered a portion of the area lying between the rails of the main, or first, track, to the east, and beyond which the respondent girls had been standing. When the rope snapped, and the warning was [5 Wn.2d 604] sounded, the spectators in that vicinity scattered in various directions. The Schock girls ran toward the northwest, in a direction and to a distance that brought them within the reach of the wagon tongue. As a consequence, all three of the girls were struck by the tongue, and sustained the injuries for which recovery is here sought. The rope which was in service on the particular occasion had been used for only one day. The length of time for which such ropes were normally used for such purposes was two days. The particular rope had been tested periodically during the operations on the day in question by tightening 'up on it to see how much it would stand, after the wagon gets down on the ground off the car,' and the employee who had charge of, and who used, the rope discovered no defect therein and saw nothing which indicated that it would not withstand the usual strain. The rope, however, was not introduced in evidence.

The question Before us is whether or not, upon the facts shown by the evidence, appellant is chargeable with negligence for which it is liable to respondents. The determination of that question depends upon the extent of appellant's duty to respondent children, and the latter question, in turn, depends primarily upon the legal relationship existing between the children and appellant at the time of the occurrence, that is to say, whether the Schock children were invitees, licensees, or trespassers, as those terms are used in relation to persons going upon premises owned or occupied by another.

An invitee is one who is either expressly or impliedly invited onto the premises of another for some purpose connected with the business in which the owner or occupant of the premises is then engaged, or which he permits to be conducted thereon; and to establish[5 Wn.2d 605] such relationship, there must be some real or supposed mutuality of interest in the subject to which the visitor's business or purpose relates. Gasch v. Rounds, 93 Wash. 317, 160 P. 962; Kinsman v. Barton & Co., 141 Wash. 311, 251 P. 563; Garner v. Pacific Coast Coal Co., Wash., 100 P.2d 32; 3 Shearman & Redfield, Law of Negligence, 6th Ed., § 706.

A licensee occupies an intermediate position between that of an invitee and that of a trespasser. He is one who goes upon the premises of another, either without any invitation, express or implied, or else for some purpose not connected with the business conducted on the land, but goes, nevertheless, with the permission or at the toleration of the owner. Kinsman v. Barton & Co., 141 Wash. 311, 251 P. 563; Holm v. Investment & Securities Co., 195 Wash. 52, 79 P.2d 708; 36 A.L.R. 37, note.

A trespasser is one who enters the premises of another without invitation or [105 P.2d 842] permission, express or implied, but goes, rather for his own purposes or convenience, and not in the performance of a duty to the owner or one...