221 N.W. 679 | Minn. | 1928
Defendant, a Minnesota corporation, operated what is known as a roller-coaster at an amusement park at Excelsior in this state on which patrons were given rides for a consideration. The apparatus was similar to that described in the opinion in Bibeau v. Fred W. Pearce Corp.
The complaint in the case, as amended, charges negligence in operating the car at a high and dangerous rate of speed, causing it to jerk; in failing to warn plaintiff of the dangers; in construction and maintenance of tracks; in failing to have the car under proper control; in operating the apparatus in a careless manner; and in failing to provide and maintain cars which were reasonably safe for their intended use.
1. The court in its charge limited the issue of negligence to the one question whether the handrail which was provided for plaintiff's *447 use was in such a condition as to permit it to move and was defective, and if the jury found that to be the case then whether that was negligence on the part of defendant and a proximate cause of the injury.
It is urged that the complaint is insufficient to present the issue of defective handrail. The allegations of the complaint as to negligence are quite general in terms and many of them inapplicable to this question. We conclude that the allegation that defendant failed to provide and maintain cars which were reasonably safe for their intended use is sufficient to present the issue.
2. It is urged that the evidence is insufficient to justify the jury in finding that this handrail was in such a condition that it could move, and that, even if the jury were justified in so finding, the moving of the handrail an inch or two was not such a defect as to constitute negligence and was not shown to have been known to defendant or such that defendant should have known and remedied the same; also that it was not shown to have been the proximate cause of the injury. The record has been examined, and while the evidence as to the handrail's moving and being in condition to move is not abundant there is direct testimony of that fact; and we cannot say that the jury were not justified in so finding, and in finding that the use of the car in such condition was negligence and a proximate cause of the injury.
3. The court permitted evidence, over defendant's objections, of similar accidents on this same roller-coaster to other persons and at other times. When this evidence was received, the court had not limited the issue of negligence to the question of defective handrail. The complaint presented a wide field for proof of negligence. If it had presented only the one claim of negligence because of defective handrail, evidence of other accidents, unless shown to have been caused by such defect, would probably have been inadmissible. But such was not the situation here. As indicated in the Bibeau case,
Where, as held in that case, there is a general charge of negligence and a charge that there is negligence in the construction and operation of an amusement device of a particular kind, and the operator is charged with the highest degree of care, and where the rule of res ipsa loquitur applies, evidence of the happening of other accidents, with the same apparatus and under identical conditions of operation, would seem to be permissible. That the apparatus and conditions of operation were the same is sufficiently shown by defendant's own evidence. See 4 Dunnell, Minn. Dig. (2 ed.) § 7053; Morse v. M. St. L. Ry. Co.
The plaintiff was permitted to go into more detail in reference to these other accidents and the results thereof than was strictly necessary or proper. We do not find prejudicial error in that respect.
4. Other assignments of error, in reference to refusal to give certain requests to charge and to one sentence of the charge as given, have been examined and found not to present reversible error.
Order affirmed. *449