Toroian v. Parkview Amusement Co.

• Decision Date: 14 December 1932
• Docket Number: No. 30360.,30360.
• Parties: ROSE TOROIAN, Appellant, v. PARKVIEW AMUSEMENT COMPANY, a Corporation, and D.D. MURPHY.
• Court: Missouri Supreme Court

56 S.W.2d 134

ROSE TOROIAN, Appellant, v. PARKVIEW AMUSEMENT COMPANY, a Corporation, and D.D. MURPHY.

No. 30360.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. James F. Green, Judge.

AFFIRMED.

William S. Connor and Charles A. Lich for appellant.

(1) The court erred in giving and reading to the jury defendants' Instruction Six, which told the jury that defendant was only liable to the plaintiff for ordinary care, whereas said instruction should have informed the jury that the defendants owed to the plaintiff the highest degree of care. Brown v. Winwood Amusement Co., 34 S.W. (2d) 149; Bibeau v. Pearce Corporation, 173 Minn. 331; O'Callaghan v. Dellwood Park, 242 Ill. 336; Sand Springs Park Co. v. Schrader, 82 Okla. 244; Best Park & Amusement Co. v. Rollins, 192 Ala. 534; Pontecorvo v. Clark, 95 Cal. App. 162, 272 Pac. 591. (2) The court erred in giving and reading to the jury defendants' Instruction Seven, which informed the jury that the plaintiff assumed the risk of all perils, risks and dangers pertaining to riding on said "Hey-Day," which were known to the plaintiff, and by the exercise of ordinary care could have been known to her, etc. For the reason that assumption of risk has no place in a tort action it was an error to give such an instruction. Parks v. Suburban Ry. Co., 178 Mo. 21; Strother v. Milling Co., 261 Mo. 23; Hudson v. Railway Co., 101 Mo. 13; Lauck v. Reis, 274 S.W. 827; Dietzman v. St. Louis Screw Co., 254 S.W. 59; 35 C.J. 685. (3) The court erred in giving to the jury defendants' Instruction 8, which informed the jury that before they could return a verdict for the plaintiff they must satisfy themselves that the defendants were guilty of negligence and that unless the jury is able to determine to its reasonable satisfaction that the defendants were guilty of negligence then plaintiff could not recover. McCloskey v. Koplar, 46 S.W. (2d) 557; Price v. Railway Co., 220 Mo. 435; Furnish v. Railway Co., 102 Mo. 438; Kapros v. Pierce Oil Co., 25 S.W. (2d) 780; 10 C.J. 1094-5.

Carter, Jones & Turney and James E. Garstang for respondents.

(1) The court did not err in giving and reading to the jury Instruction 6 given and read to the jury at the request of the defendants, which appellant claims was erroneous because it predicated plaintiff's right of recovery upon the failure of the defendants to exercise ordinary care, Pointer v. Mountain Ry. Construction Co., 269 Mo. 104. The main instruction given and read to the jury at the instance and request of the plaintiff, which was 3, predicated defendants' liability on the failure to exercise ordinary care and not the highest degree of care. Appellant is, therefore, in no position to complain of Instruction 6. given at the request of defendants. Gordon v. Clark, 219 Mo. 612; Thorp v. Railroad, 89 Mo. 650; Holmes v. Bridewood, 82 Mo. 610; McGonigle v. Dougherty, 71 Mo. 259; Smith v. Culligan, 73 Mo. 387; Brown v. Davis, 67 Mo. 315; Monroe v. C. & A. Railroad Co., 219 S.W. 68; Simmons v. Wells. 20 S.W. (2d) 659; Bowles v. Eisenmayer, 22 S.W. (2d) 885; Roark v. Stone, 30 S.W. (2d) 650. (2) The court did not err in giving and reading to the jury Instruction 7. Pointer v. Met. Ry. Con. Co., 269 Mo. 132. The court did not err in giving and reading to the jury Instruction 8, given and read at the request of the defendants. McCloskey v. Koplar, 46 S.W. (2d) 557; Hicks v. Vieths, 46 S.W. (2d) 607.

FITZSIMMONS, C.

Plaintiff appeals from a verdict and judgment in favor of defendants rendered in the Circuit Court of the City of St. Louis in an action for damages for personal injuries. The amount sued for gives this court jurisdiction of the appeal.

The injuries alleged are charged to have been suffered while she was riding an amusement device known as "Hey-Day," she having paid the regular fare for the ride. The hey-day is described in appellant's second amended petition as a device consisting of "a circular platform approximately thirty to forty feet in diameter upon which were a number of two-passenger cars operated by means of a cable or wire rope which was caused to move by machinery driven by motive power, and which cable was grasped by a device attached to the front of said cars, causing the cars to move with said cable or wire rope." Appellant in her petition alleges that while she was so riding, and was in the exercise of due care for her own safety, the cars, and particularly the one in which appellant was riding, came to a sudden, violent and unusual stop "by reason of the carelessness and negligence of the defendants."

Appellant alleges that, in consequence of the sudden, violent and unusual stop, she was thrown with great force against the front, the back and the sides of the seat and against the floor of the car, and thereby she sustained the bodily injuries complained of. It will be observed that general negligence is pleaded. The answer was a general denial. The evidence tended to prove the allegations of the petition descriptive of the amusement device, and the facts of appellant's presence as a passenger in one of the cars, the sudden stop of the car and appellant's resultant injuries. Testimony offered by both sides tended to prove that the operating cable was beneath the platform on which the cars ran, and that the sudden stoppage of the cars of which appellant complains was caused by the cable jumping the guide or drum while the device was going at full speed. The man in charge of the hey-day, a witness called by respondents, testified that the cable frequently jumped off the drum, that the cable would stretch, and that there was no known invention that would keep the cable on the drums all the time. He also testified that the platform was level but that there were two dips in the track on which the cars ran. The cars, in addition to their forward motion, when pulled along the track by the cable, had a revolving motion, first to one side then to the other, as the momentum of the ride would throw them. The average forward speed of the cars was fifteen to twenty miles per hour. The forward movement of the cars, revolving and reversing as they went, together with the depressions in the tracks and the high speed caused the device to jerk as part of its regular operation. A ride would last three minutes. At the end of that period, an operator would declutch the cars from the cable by means of a lever. The cars would then fall off in speed and attendants would stop them by hand and help out the passengers. But when the cable jumped the guiding drum, as occurred on the day in question, the cars stopped at once.

Appellant testified that she frequently visited the park where the device was located before the day on which she was injured. She watched the hey-day on these prior visits, but she took her first ride on the day that she alleged she had been injured. Appellant was pregnant at the time of her injury and also when she watched the device at other times. On her earlier visits to the park she was afraid to go on the hey-day for fear she would get sick at the stomach because the cars went "around and around." But on the day that she was injured, she was not afraid and so she ventured. Ten cars were operating that day and each carried two passengers. Appellant was the only one hurt.

[1] I. Appellant charges that the trial court erred in giving respondents' Instruction 6, which submitted to the jury the issue of ordinary negligence, while respondents owed to appellant the highest degree of care. We are not called upon to decide what degree of care respondents owed to appellant, for the reason that the parties tried the case below on the theory of ordinary care and the appeal must be decided in this court upon the same theory. [Mirrielees v. Wabash Railway Co., 163 Mo. 470, l.c. 486, 63 S.W. 718; Chinn v. Naylor, 182 Mo. 583, l.c. 594, 81 S.W. 1109; Plannett v. McFall (Mo. App.), 284 S.W. 850.] Appellant's amended petition, upon which the case was tried, alleged that the car came to a sudden, violent and unusual stop "by reason of the carelessness and negligence of the defendants." And appellant's main instruction is predicated on the exercise by respondents or want of exercise of "due care, that is, such care as an ordinarily prudent person would have exercised under like circumstances."

[2, 3] II. Appellant assigns error to Instruction 7, for the stated reason that assumption of risk has no place in a tort action. The first paragraph of the instruction is as follows: "The court instructs the jury that in riding upon the contrivance known as the `Hey-Day,' plaintiff assumed the risk of all ordinary perils, risks and dangers pertaining to riding upon said `Hey-Day,' which were known to plaintiff, or by the exercise of ordinary care on her part could have been known to her, but did not assume the risks, perils or dangers arising from or caused by the negligence or carelessness, if any, of the defendant, its agents or servants."

The instruction then informed the jury that, if they found and believed from the evidence that the injuries alleged to have been suffered by appellant were not the result of any negligence or carelessness on the part of respondents but were the result solely of the ordinary perils, risks and dangers arising from appellant riding on the...