"V.
That prior to the 30th day of July, 1938, the American
Legion, a corporation, applied to the defendant city for
permission to hold a carnival, called the Patrick Shows
within the city limits of the city of LaGrande, Oregon, and
said defendant city agreed with said American Legion that
said carnival could be held by it without the payment of
any license fee.
"VI.
That acting under said agreement, said American Legion
from about the 23rd day of July, 1938, to and including the
30th day of July, 1938, went upon said Block 10 and a part
of said North Fourth Street, at or near the junction of
said North Fourth Street with W Avenue and Jackson Avenue,
in LaGrande, Oregon, and did sponsor and hold thereon said
carnival called the Patrick Shows. That said carnival
consisted of numerous structures, booths, attractions, and
also included games, events, ferris wheel, swing,
merry-go-rounds, and especially a swing called the Merry
Mix-Up, and many other attractions, and said structures
were festooned and illuminated with lights, all designed to
draw to said place large numbers of people, and all of
which was well known to the defendant. That during said
time crowds of people attended said carnival, admission
fees were charged for each of said several
shows and attractions, including said Merry Mix-Up, and
said American Legion furnished ticket-takers at the various
attractions and said defendant city furnished policemen to
supervise the conduct of said carnival.
"VII.
That one of the attractions erected in said carnival was a
swing called a 'Merry Mix-Up' and was located in
and upon North Fourth Street at about the junction of said
North Fourth Street, Jackson Avenue and W Avenue in said
city; that said swing was worn and out of repair and was an
apparatus likely to produce injury unless operated with due
care and consisted of a number of individual seats or
swings suspended by rods and chains from cross-arms or
framework supported by a central pole which was caused to
revolve by a gasoline motor controlled by an operator
sitting in the center; that when at rest the seats were
suspended about two feet above the ground. and said seats
had no foot rests or foot supports, and in riding on said
swing the occupants, including this plaintiff, were
compelled to let their feet hang free. That there was a
short chain known as a 'safety chain,' one end of
which was fastened to one of the suspending chains
at the front side of the seat, and when seat was occupied,
this 'safety chain' was intended to be placed
across in front of the occupant and fastened by snaps to
the suspending chain on the other side to keep the occupant
from falling out. That when said swing was revolved, the
seats swung out from the central pole, and the distance
from the seats to the ground correspondingly increased.
That in the course of the operation, the operator of said
swing caused said apparatus to be revolved at a high rate
of speed and the seats to be swung out at an angle of more
than 45 degrees and the seats to be about 15 feet from the
ground. That said swing was enclosed partially by a fence
and partially by trucks parked at places near said swing
and in such positions that any one falling from a seat of
said swing while in motion would likely strike one of said
trucks. That a ticket wagon was situated
nearby and tickets were sold to patrons for rides in said
swing. That a man was stationed near said ticket booth who
continuously proclaimed in a loud voice the thrills and
pleasures of riding in said swing. That attendants took
tickets at the time patrons were seated in said swing, and
other attendants seated passengers in the seats of said
swing, and that it was the duty of said attendants to
attach said 'safety chains' in front of the
passengers in each seat so as to prevent said passengers
from being thrown out of said seats. That a large crowd of
people congregated in and about said carnival and in and
about said swing, and large numbers of people, including
the plaintiff, were induced to ride upon said swing.
"VIII.
That said defendant at all times herein mentioned had
notice and knowledge, or by reasonable diligence ought to
have known of said carnival upon said Block 10 and said
streets as aforesaid, and of the location and condition of
the swing hereinabove described, and by its actions said
defendant invited the public, including plaintiff, to
attend and patronize said carnival and ride upon said
swing, and it was the duty of said defendant to keep said
Block 10 and said streets safe for this plaintiff and to
see that said swing was safe, and operated safely so as not
to injure this plaintiff.
"IX.
That at the time plaintiff rode upon said swing as
hereinafter alleged, defendant was negligent in the
following particulars:
"(1)
Defendant unlawfully and negligently permitted said
carnival and said swing to be erected on said Block 10
and in said streets while said swing was dangerous and
out of repair, and negligently failed to make said Block
10 and said streets safe for plaintiff.
"(2)
Defendant negligently permitted said swing to be erected
and operated at said place in a dangerous, unsafe and
defective condition, and while the seats thereof were
slick and smooth and tipped in a manner
that would cause or permit plaintiff to slide out while
riding, as hereinafter alleged.
"(3)
Defendant negligently permitted said swing to be erected
and operated at said place without any foot rests or foot
supports attached to the seats of said swing.
"(4)
Defendant negligently permitted said swing to be erected
and operated at said place without sufficient safety
chains to hold plaintiff in the seat while riding as
hereinafter alleged.
"(5)
Defendant negligently failed to inspect said swing and
failed to make said swing safe for the public and
especially for this plaintiff.
"(6)
Defendant negligently failed to prohibit the operation of
said swing at a dangerous and excessive rate of speed,
and negligently permitted said swing to be operated at a
dangerous and excessive rate of speed and at a speed that
caused the seat of said swing in which plaintiff was
riding as hereinafter alleged to swing out at an angle of
more than 45 degrees and to be a great distance, to-wit,
about 15 feet, above the ground.
"(7)
Defendant negligently failed to see that a safety chain
was fastened in front of plaintiff to hold her in the
seat of said swing while riding as hereinafter alleged.
"(8)
Defendant negligently failed to see that the trucks
parked around said swing were placed at a sufficient
distance away from said swing to be safe, and negligently
permitted a truck to be parked sufficiently near to said
swing that an occupant falling out of said swing would
likely strike the same, and plaintiff did strike the
same, as hereinafter alleged.
"(...
