Thomas v. Pacheco

• Decision Date: 26 June 1967
• Docket Number: No. 21156,21156
• Citation: 429 P.2d 270,163 Colo. 170
• Parties: Bernard THOMAS, individually and d/b/a Art B. Thomas Shows, and Thomas M. Melega, Plaintiffs in Error, v. Loretta Lou PACHECO, a minor, by Mabel Roman, her next friend, Defendant in Error.
• Court: Colorado Supreme Court

Page 270

429 P.2d 270

163 Colo. 170

Bernard THOMAS, individually and d/b/a Art B. Thomas Shows and Thomas M. Melega, Plaintiffs in Error, v. Loretta Lou PACHECO, a minor, by Mabel Roman, her next friend, Defendant in Error.

No. 21156.

Supreme Court of Colorado, In Department.

June 26, 1967.

Charles D. Pierce and H. Myers Bumgardner, Pueblo, J. Donovan Stapp, Denver, for plaintiffs in error.

Bellinger, Faricy & Tursi, Pueblo, for defendant in error.

DAY, Justice.

The parties appear in this court inverse to their alignment in the trial court so we will refer to them as they were below or by name.

Plaintiff Pacheco suffered severe permanently disabling injuries when she fell from an amusement ride called the 'Scrambler' which was owned by Thomas and operated by Melega, a sixteen-year-old boy. A jury verdict was returned in favor of the plaintiff. The defendants are here seeking to reverse the judgment.

The defendants contend that there is insufficient evidence to establish negligent conduct on their part; and that there was no showing in the trial court that any conduct of theirs, negligent or otherwise, was the proximate cause of Pacheco's injuries. On this ground they complain of the court's failure to direct a verdict in their favor. In the event we do not determine the evidence insufficient to support the jury verdict, they then contend that the trial court committed error in the giving of several of the instructions and that they are, therefore, entitled, at least, to a re-trial under the proper instructions to the jury.

The amusement device owned by Thomas was described as a carnival ride consisting of twelve individual cars--variously referred to as 'cars,' 'seats' or 'buckets.' The device has a center column--the main drive of the ride--with three overhead arms extending out from it. At the end of each of the arms another column extends downward and to this are attached four cars at right angles to each other. This column is so constructed that the individual cars may revolve. When the 'Scrambler' is in operation, the three main overhead arms turn in a clockwise direction in a 60 foot circle at 10 or 11 revolutions per minute. The four seats suspended from each of the arms turn in a counter-clockwise direction at 11 or 12 revolutions per minute. Thus, while the entire ride moves in a circular clockwise pattern, very much in the manner of a merry-go-round, each of the individual seats in which the passengers are riding is turning in a counter-clockwise direction.

The ride was in charge of the sixteen-year-old Melega--the sole attendant. He was both the ticket-seller and operator. He permitted the plaintiff, aged seven years, together with a seven-year-old companion, to enter upon the ride. The boy did not keep the children in view at any time after he started up the ride because, as he testified, he didn't see Pacheco until she was on the ground. The seat on which the children rode would accommodate comfortably three average size adults. The children were not strapped in or otherwise secured to the seat, and each constituted a 'free body' in the 'bucket.' There was a bar fastened across the front of the seat to which the children could hold on, but the depth of the seat--20 inches--and the height of the seat from the floor--another 20 inches--indicated that the children's feet were dangling and could not be braced on the floor, thus they were 'free' to be buffeted forward and backward as well as side-ways on the seat. The space between the seat and the bar was sufficiently large to permit a child's body to pass between the seat and the bar. The expert testimony was that the centrifugal force, generated on the outer side of the circle as well as the inner clockwise circle, was such that it 'throws' the passenger both forward and backward and that the main force was to the outside of the car, the side out of which Pacheco fell.

Pacheco tried to hold on, but lost her grip. Pacheco's seven-year-old companion took hold of Loretta's hand and, she said, 'I holded on as long as I could.' Pacheco said, 'Help, I'm falling.' Then Pacheco went off the seat, down to the floor where people put their feet, and fell out of the car through the opening above the step. The sixteen-year-old operator stated that he ran the car at 'full throttle.' Pacheco and her companion both testified that 'it kept going faster and faster.' The operator testified that there was a braking device which he could use, but he did not use it until he saw plaintiff on the ground.

The owner, Thomas, admitted that he had no rule or policy concerning small children riding on the device when unaccompanied by an older or adult person, and that he had not instructed the operator about children riding without older responsible persons being with them. He admitted on the witness stand that the determination of the age of the child who was permitted to ride unaccompanied by an older responsible person 'depended upon the use of common sense.'

This case was tried before the rule concerning the degree of care owed by an amusement ride operator to his passengers was promulgated by Lewis v. Buckskin Joe's, Inc., 156 Colo. 46, 396 P.2d 933. Therefore, with reference to the instruction given in this case on the degree of care, the defendants had the advantage of being charged with the duty of using only ordinary care. We believe that the record as summarized above presents physical facts and operational procedure from which the jury as judges of what constitutes ordinary care could infer that Thomas and Meleva were negligent.

Defendants...