Wodnik v. Luna Park Amusement Co.

• Decision Date: 21 August 1912
• Citation: Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 P. 941 (Wash. 1912)
• Parties: WODNIK v. LUNA PARK AMUSEMENT CO., et al.
• Court: Washington Supreme Court

125 P. 941

69 Wash. 638

WODNIK v. LUNA PARK AMUSEMENT CO., et al.

Supreme Court of Washington

August 21, 1912

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Matt Wodnik against the Luna Park Amusement Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Thomas Byron MacMahon and George McKay, for appellants.

J. P Ball, of Seattle, for respondent.

ELLIS J.

This is an appeal by the defendants Luna Park Amusement Company and William Looff from a judgment rendered upon the verdict of a jury for damages for personal injuries to the plaintiff which, it is charged, were caused by their negligence.

The complaint, so far as material to the questions presented, in substance alleged: That the defendants were the owners and managers of a place of public amusement at West Seattle, called 'Luna Park,' and had, by extensive and broadcast advertising, made the resort well known to the public, and that it was largely patronized by the public; that among the amusements there maintained was a mechanical device, called a 'striking machine,' so arranged that a person, by striking with a long-handled, heavy mallet upon a movable scale or balance, was enabled to register thereon the force of the blow; that on April 30, 1911, the plaintiff visited Luna Park, and accepted an invitation of the defendants, through their agent or employé in charge of the striking machine, to use the same, paid the money demanded therefor, and was given and used a mallet which was unsafe, in that the head was not securely fastened to the handle; that in using the mallet he swung it above his head with both hands, intending to strike the machine, when the head of the mallet flew off, and the handle being released, he struck himself therewith a violent blow upon the knee, inflicting the injuries complained of. The negligence charged is that the defendants, their agents or employés, furnished to the plaintiff a mallet which they knew, or in the exercise of proper care, inspection, and supervision could have known, was unsafe for the purpose intended.

The answer admitted the ownership, management, and extensive advertisement of the park as place of amusement by the defendants, denied the allegations of negligence, denied that the defendants owned or operated the striking machine, and set up as an affirmative defense in general terms that the injury was the result of the plaintiff's own negligence. This was traversed by the reply.

The evidence showed that one Friedle was the sole owner of the striking machine, and personally operated it on April 30, 1911, under a lease or concession of space from the defendants for the amusement season, paying the defendants 35 per cent. of the gross receipts for the concession; that he hired and discharged his own employés; and that the defendants never exercised, or attempted to exercise, any authority over him. The appellants contend that under this evidence they cannot be held responsible for the injury. This position is not tenable. They were admittedly the owners, managers, and operators of Luna Park, and advertised its amusement features as a means of procuring the patronage of the public for their own pecuniary advantage. They received a part of the proceeds from the specific amusement feature, in patronizing which the respondent was injured. He was there by their invitation. There was an implied representation that the instrumentalities for amusement which they advertised were reasonably safe. The fact that the amusement was furnished by a third party under an independent contract with the appellants in no manner relieved them from the duty to see that the appliances were reasonably safe for the use intended. The duty of exercising reasonable care for the safety of their patrons, while engaged in the performance of the very purpose for which they were invited, cannot be avoided in any such way. Thompson v. Lowell, Lawrence & H. St. R. Co., 170 Mass. 577, 49 N.E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323; Richmond & Manchester Ry. Co. v. Moore's Adm'r, 94 Va. 493, 27 S.E. 70, 37 L. R. A. 258. We think that, as between the respondent and the appellants, the owner and operator of the striking machine must logically be held the appellants' agent.

The appellants also contend that there was no evidence of negligence on their part. The respondent's testimony as to how the injury occurred was substantially as alleged in the complaint. We think that the fact that the head of the mallet flew off while the mallet was being used by the respondent for the very purpose for which it was furnished to him was sufficient to cast the burden of explanation upon the appellants. No explanation being offered, the jury was warranted in inferring that the head of the mallet came off because it was negligently and insecurely fastened to the handle.

'When a thing which causes injury is shown to be under the...