*1 SMITH. v. OAHLUST 524 Syllabus. SMITH. v. SADIE CARLIN JOHN J. in Operation Necessity Negligence Amusement — Device— Jury. Inspection Questions for — amusement an while injured patronizing for one, In order it must affirm- thereof, against proprietor recover device, to proprietor’s resulted that the atively appear to circumstances, care, under all to use reasonable failure 531 p. the device. carry plaintiff insurer of is not an of an device amusement proprietor them he bound protect nor is of his safety patrons, incidental to risks as are necessarily obvious and dili- care he must use reasonable device, particular main- and is is properly that the device to see gence constructed, used, for which purposes in a fit condition tained that degree skill with competent managed by agents and is exercise would person an ordinarily prudent care 531 in a like situation. p. like circumstances under device, paid amusement plaintiff, patron Where safety, an assurance of its but without fare after and, herself of its under the exclusive knowledge operation, placed device, agents operating control of defendant’s care and an accident to her continued, relation occurred and' while this was such as does not things, course that, ordinary have the construction, those happen, maintenance, diligence, reasonable care and the occurrence management use case was sufficient to to the carry jury of the accident accident from want of whether the arose reason- determine p. care. able who had constructed operated An defendant’s expert, in which device, plaintiff injured, having amusement testi- gone or nuts should be over and tightened fied that certain bolts be seen that and that it should was in everything every day, starting day’s operation, fact trim before that defend- listened, merely starting employee machinery, ant’s CABLIN' Syllabus.
Md.'] nuts hear did not the bolts and anything “click,” tighten 533, 534 daily, jury. held evidence of negligence go pp. *2 If one an amusement whose patronizes device, he is nature are unknown to- but of the of which him, safety he assured trusts himself wholly pro- before care prietor regards as and an which accident happens one of all due to a number of which involve causes, blame to the he is proprietor, not exonerated because the matter may be mixed such confusion that cannot he accurately specify which of the possible causes is the actual injury p. one.
In an action for of an patron amusement de- vice, consisting in moving of a on part canvas belt patrons slid, upon unexpected of a tilting bench on which they were seated, injury to from her plaintiff resulting coming contact with some hard slid from the object she bench to the held belt, view of nature of acci- with its dent, circumstances, and of accompanying independent lack evidence of of care on the defendant, proprietor device, proper jury. it was to submit the case to the 528-535
pp. 11th, Decided 1925. June from the Court of
Appeal Common Pleas Baltimore City (Symington, J.).
Action by Sadie- Smith John J. Carlin. From a for judgment plaintiff, defendant appeals. Affirmed. The cause was argued before C. J., Bond, Oe- Urner, JJ. Parke, eutt, Walsh, Poe Allan and Robert D. Bartlett,
Edgar with whom were Bartlett, &Poe Claggett brief, for the appellant. R. Carman and
Robert Saul Praeger, whom G. A.C. on Anderson for the- appellee. brief, delivered the J., -opinion the Court.
Parke, Smith and Sadie- appellee, husband, John R. G. Arthur Fuller and Ethel Smith, Fuller, his wife, CABITH v.
Opinion, Court. wife, formed a party Thelma his Mills, W. Mills and Fred the various 3rd, 1923, September enjoying, J. Carlin, maintained John forms of amusements use Park,” Baltimore, at “Carlin’s appellant, before, the resort had visited They diversion of public. which the entertainment place knew the form of general mechanical tried had After the party afforded. many to one which came they devices maintained proprietor, in imita- entrance Fun,” “Just for was called else cave, rock everything into a tion of an opening an invita- who-cried An attendant was concealed. charge, o-f the members of ignorant but the the party tion, there was- visible give device, nothing nature Mrs. Fuller to- hesitated. said clue, .them a *3 afraid to that ? I am kind of a is “What place attendant: attendant answered: “Why, The in there. Is safe?” go to couldn’t afford if it wasn’t we safe; safe, it is certainly, into -and went six then tickets, The bought run this place.” n a with dark passage, places, -device, walking through reached, until a door was floors, and floors shaking slanting stationed, was stopped party attendant another where two were allowed to pass that statement only with the time. door at a through first to go her husband pair and
The appellee which a small dark room, apparently door into- floor, and a fast and painted four walls, in the room elevator. The thing semblance an only at- the back wall. The bench, against a smooth wooden was to- bench, directed the sit tendant appellee his wife. his arms around While to husband put assured the attendant was the appellee again position, and the hus- closed, door was was safe; that the device no- in the darkness with idea were alone band and wife no- see opportunity was happen what going hidden mechanism with which the de- know anything without 'Suddenly, was operated, vice warning, fell were seated the floor dropped, which they bench on CARLIN Opinion of the Court.
]VjR.] to their testimony, their feet, according I under they, rom the bench with such and precipitancy were hurled force a end- recumbent, moving upon shot, helpless an carried them down length belt, less canvas feet. decline sixty-one undulating and cast from the bench was As the appellee propelled blow on the hurt she struck being was upon canvas, blow—it “terrific her described as a end of She spine. out cried to hurt her appellee enough terribly.” her attendant called to when she was and an injured, pain canvas, obey, but unable sit she up moving the end of husband until and was held tbe arms of her her. the attendant caught the canvas belt was where reached, wanted to be taken The attendant asked the appellee left their homes and the doctor, no; she said party and, Tbe while suffer, in Cumberland. continued to appellee her and found women examined on tbe body way, in- where the blow bad been bruise at tbe end of spine, When she reached home a doctor was summoned, dicted. was made. Tbe doctor saw the bruise, examination a fractured had sustained disloca- discovered she the small terminal tion of the bone coccyx, After some the fracture healed with callous, months spine. and with a lateral in a deformed or angulated position slight the lower The in- fragment coccyx. displacement *4 and unless relieved a permanent, painful by surgical jury account which was not advisable on of general condition. physical recovered
It is for this serious a appellee in $15,000 the Court of Com- verdict of appellant re- mon Pleas of Baltimore The seeks to have appeal City. Three these are on viewed four of evi- rulings rulings. the fourth is As the dence and on prayers. principal in court’s is whether there was error refusal to question verdict for appellant, testimony bearing direct a will be stated. that point Fun” was of those contrivances for one designed
“Just GAJPuLIjSTv. SMITH.
Opinion of tlie Court. of and succession providing attract amuse the .public by ridiculous and experiences, and situations exciting, amusing, and bewildering simulated dangers surprising through in alarms were to be whose thrills and conditions, enjoyed that no latent attended their creation. the confidence peril of “Just Fun” was when the small room The culmination It seemed an elevator. This illusion was pro- was entered. two duced its walls being painted represent by by one, bulbs, which, small electric did not lighted, prevent light n dark. the interior from being feet was four feet five feet room was six high, The back in walls Against size. The were stationary. side of the room was a wooden bench with a smooth the back wall inches in sixteen surface, polished forty-two length, inches floor room. above the inches twelve wide, inch and it had a solid oak back. thick, The seat was one and the floor built as a The front wall room were means of mechan- and formed secret right angle. By unit outside of this chamber, ism, operated front floor and bench wall, stable were mov- the apparently an un- operator at the will of appellant, able who, into the'room. opening could look seen, this of five feet was under floor four Immediately pad and from ten inches thick. eight five feet square, about was four inches below floor this pad The top also the front wall room and, room. Beyond pad wooden or incline undulatory a smooth surface sixty- had a nine feet between drop’ feet length, one end. At the of each the successive peak beginning about which were feet eight apart, undulations, parallel set the wooden with the surface, rollers across wooden so surface of blocks, revolving every turning ends adjusted, when properly perfect alignment was, roller At the undulations. either extremity the surface was a wooden roller, incline whose wooden transverse^ was intended be line with the end surface top revolving rollers, of these two be higher may the device. *5 0ABLEST V. Opinion the Court. of
Md.] identified it the second was fourteen inches roller, by calling in diameter, axis, seven feet from its to this and parallel second and on the was the of another roller, level, same center wooden which will be called the first roller. roller,
An endless about or six canvas which was belt, five- ply two hundred and ten feet inches long, sixty-nine sixty-eight and which six hundred weighed pounds, pro- wide, motor, electric traveled over under the pelled by wooden of at in surface incline undulatory speed, rapid rollers, contact with the terminal rollers and with the other which last served relieve the friction the contact of only of the belt with the surface of wooden incline. But in the distance of seven feet between first and second rollers, under the floor of the canvas directly room, belt floor over the been passed under the has pad described. Underneath this floor was attached a projecting wooden roller, four inches diameter. When the walls the room last contact, mentioned roller pressed down the canvas under this belt, that, floor, so the belt was forced four inches alignment out barely escaped of the as it ran. top pad
So as the device was long maintained and properly worked, when the the lever and operator pulled down the pushed latch at the time, the seat the bench tilted forward same in an arc sixteen forty-five inches, floor degrees while front wall moved dropped away, upward an arc feet, of seven so roller attached pressure to the floor was and the canvas belt four released, rose inches run on line the level first and second top four inches above level rollers, top The usual time for these concurrent pad. movements was five at the end of which the from1 lower seconds, edge should be contact with the of the bench surface seat were slid canvas as the off belt, occupants easily moving belt not more than canvas five feet onto which, the second and then roller, the axis of down the CAUTIN v. SMITH. *6 Opinion tlie of Court. the were feet the undulatory passengers of sixty-one incline, in seconds. belt twelve earned the by the pull maintain tension necessary In order to the belt, there take the canvas belt and to the slack canvas up at. idler with two eccentrics long was a weighted tightening the was shown room. It also the the bottom machinery was to that the of pad pro- testimony purpose appellant’s from the he was tilted when injury tect passenger of reason, as constructor any if the belt sagged seat, at times. the belt would give that way the device was afraid it come contact that did is occasionally proof the belt. mechanical of this that the normal operation
It is clear bench grad was cause persons designed device taut, moving tilting upon slide off seat slowly ually five feet from the second the distance of about belt, canvas ’at he would roller, toward wooden large without con surface of the slide down carried the undulatory of device except tact with- the rollers other part It also- canvas endless belt.. running continuously of the various that functioning parts obvious this safe co-ordina their constant depended upon device necessarily and that this harmonious used; working tion while being without care part propri eould not he secured on of the and maintenance etor not only inspection in its but also operation by device mechanism on witnesses produced attendant. One had he floor holts or nuts testified the appellant men are to go that “the supposed tightened every day, bolts and everything- at the blocks and see over them and look is in before opening up.” first-class shape to have shown number who patrons
The large the amusement de- and excitement of enjoyed pleasure that, is evidence while reasonable care mishap vice without not But dangerous. inherently device existed, ex- while care was no happened being fact that accident accident would not is not evidence happen ercised OABIJA V. Opinion 'Court.
j
care
of due
exercise
withdrawn. The
care was.
when that
not work safely,
did
If the device
a cause of safety.
have
it should
demonstrated
own testimony
the appellant’s
the appellee,
of its use circumstances
under the
done
some
appellant,
neglect
was obviously
had fully complied
default of the appellee,
through any
servants. But
with all the instructions
appellant’s
appear
must affirmatively
order
to recover,
for the appellee
a failure
was the result
complained
that the
*7
under all
care,
use reasonable
to
of the appellant
safety
to
the appellee
circumstances,
carry
appellant.
device
operated by
amusement
nor
his
patrons
an
not
insurer
is
proprietor
safety
risks as.are
them
obvious
he bound to protect
is
device;
amusement
incidental
the particular
necessarily
that
care and
see
diligence
but
use
he must
reasonable
fit
and maintained
a
device is
constructed,
properly
and is man
it is. used,
condition for
for
purposes
of care
with that degree
skill
competent
aged by agents,
under
would exercise
an
person
ordinarily prudent
State,
v.
like situation. Albert
a
like circumstances
Hartlove,
Md.
Co. v.
123
78;
New Theatre
C6 Md. 337;
Carlin v.
600;
Assn. v.
118 Md.
etc.
Gray,
Agricultural
Krout,
So, maintained, the'appellant been constructed, managed by fare, and, after and the had paid find his patron agents, knowledge of its without any safety, assurance under the herself in the contrivance placed and while this these exclusive care control agents, her an accident that, relation occurred continued, as does not was such happen course things, ordinary —if maintenance, or construction, manage- have the those tbe occurrence' of reasonable care diligence, ment use sufficient the ease to jury the accident was to carry want of whether accident from determination arose CARLIN Opinion of the Court. Potts, Benedick v. 88 Md. 52; care. American reasonable Co. v. Md. 261, Express Terry, infra. attendant
When the lever and down pulled pushed as make floor from latch so the seat and the swing drop feet, under their and her husband did not slip appellee seat as a care- of the canvas belt tilting top Mrs. ful would have caused. machinery “That Smith’s is: description seated, after they were out, seat some shot hurt were she collapsed they way, herself, and shot this canvas.” out force on I The witness said: hurt She “Oh, Jack, my spine.” have does not know whether she hurt her she before spine got or after she canvas, canvas but was got just about the time she hit not know canvas; does she what kind blow it was—it terrific blow—it was her to hurt That she does know what enough terribly. struck. best of her was she To the recollection she was on the canvas when was hurt. That it felt like terribly she at : What, the end of sharp pain spine. (The Court) was the cause of this ? you know, sharp terribly pain (The it was I Witness) Well, : struck something during opera- *8 tion.
The the testified that his of wife’s ex- husband appellee of all clamation was seat but that it after pain collapsed, so was her he unable whether out- happened quickly say before was she to the canvass or afterwards. cry got of members other of the who followed The testimony party, Smiths succession down the tended to quick device, accident, fix the and its as cause, place being neg- maintenance, of or appellant ligence device. construction instance, Mrs. Ethel Fuller testified:
For “That a few down bench after sat it seconds collapsed and the canvas; cqnvas threw them out on was very saggy what felt and seemed to over like rollers. scoop She was over about or them, hurt as two' feet from passed she three That felt the seat she collapsed. where hard. something very CAKLIA Opinion the Court.
yy(p'j a hard feel it was it hurt hut could That did not she “That she received hard substance or a roller.” Again, It had a scoop belt loose. very sensation of the canvas being down know but it in it. She how much, scooped did then a roller then sort of went over up apparently, went down and again.” scooped up a herself little stated: “That hurt Mrs. Thelma Mills she It soon after injuries. right but did not serious get any That that hit against something. the seat she gave away hurt.” And when she was had canvass gotten she that seemed W. “recalls sticking up Fred Mills, something than somewhere between and harder the canvas higher that a canvas; sensation got centre and the top you went over the that roller; over when something you going one it- was sort of lie that sensation at bump; only got slide, came at first roller; that this impression when and that had no at over going anything he all feeling he went over the other rollers on the slide.” mechanism device was complicated amusement end It was driven pieces. long many interdependent canvas hundred pounds, less six weighed belt; which was run motor. Its subjected electric device strain, vibration, to constant stress bolts reflected in continual of nuts and loosening ex An affected its other operative parts. necessarily at time construction the device pert begun device, run the and who- was who had installation, 1923, stated, to overhaul repair July, employed that the floor bolts nuts had a witness appellant, and that was the to be tightened every day, duty them, attendants to and see go everything trim The attendant starting day’s operation. before *9 at the time of did not the accident charge operation the of an He started the make kind inspection. machinery', was while device he listened to hear operating, and the any his and ear “click,” depended apparently thing sight or if loose out of order. discover was And he anything to v. .CARLIN Opinion of the Court. did nuts he had not the bolts and because looked tighten daily, the device over while it and had listened, was running did not believe the it was needed. While did not tightening him than minutes take more five his inspection, make had device, the the six or required expert, operated seven hours work over the go steady thoroughly device and make some From this evidence slight repairs. jury the could have fouud that force with which the appellee from the or the slackness and propelled bench, sagging belt, or a hard striking appellee against object, aas to1imperfect attributable adjustment, align roller, ment or a condition dangerous because operative parts of loosened nuts bolts or other defects that had or not been discovered and reason of this repaired careless, cursory method An must be ac inspection. inspection adequate, to be careful. If cording reasonably circumstances^ believed jury testimony appel lee, it could have found that the violence the ap was thrust pellee from the seat drove her forward four or five feet with so much momentum that slackened belt did prevent supine sec striking body violently ond wooden roller, which fractured the end of her spine force impact.
If hire of an party patron device, amusement whose are nature but which he has operation unknown, been assured are safe before entrusts himself he wholly the care proprietor device, operation an accident which is of a happens due one number all causes, which involve blame to the he is not proprietor, exonerated because matter be mixed may con- fusion that cannot patron which of the accurately specify causes of his is the possible actual one. The injury in the instant case arose from defect in or in the device when it was use proprietor,, in its which, he agents had com- employed which, exclusive plete control, had been exercised with a reasonable could decree of have forseen care, or dis- covered avoided the defect time to have prevented *10 535
CARLIN SMITH. % Opinion of the Court. ]\/[(J_] usual that in the to It would be irrational assume injury. amusement device, of this normal course condition a dangerous most when the was dependent, patron propri could without negligence part prevail, body and injure moving could where strike etor, unforseen and movement were whose propulsion patron, but which conditions, planned by under unknown 1 Beven on as a of the patron’s experience. part proprietor R. C. &.P. R. Howser v. 126; ed.), 125, (3rd Negligence Potts, Amer Co., Md. 55; v. 88 52, 80 Md. Benedick 146; v. v. 126 Md. Heim 254, 261; ican Co. Terry, Express Miller, Roberts, & v. Md. Ches. Pot. Co. 135 600; Telephone Sindell, v. 140 Co. Md. etc. 645; Bottling 144 Goldman v. Md. 78, 91; & 88 488; Md. Winkelman Brown Colladay, Cowan, v. 554, Works 555; v. 102 Md. Ches. Iron Decola Hochschild, Md. 309. 119 Krout, Md. Carlin 140, support do find not
We record on that does The appeal the appellant’s position. are here with we present question concerned, hazards known related visible conditions presenting “to and to. accident assumed,” which wore voluntarily nor neg- defect the amusement device occurred no in its ligence operation. its ease; accom- accident, nature
The sufficient, if circumstances, unexplained, panying in- there was, also; negligence; raise presumption appel- of lack of care on the evidence dependent in sub- therefore, not error was, lower court lant. The “E” Nor should the case to the appellant’s mitting jury. This, was too general been granted. prayer have prayer the testimony portion terms, disregarded was in that the device believed, tended to establish which, at reason of insufficient inspection an unsafe condition by three the accident. are remaining exceptions time of and in was no those there evidence; rulings rejection excluded irrelevant as the testimony error; reversible immaterial. n Judgment with costs affirmed, appellee. CARLIN v.
Dissenting Opinion. O. J., Bohd, filed a opinion dissenting follows: It to me that seems the testimony tracing on a roller contrivance on bump which the plaintiff was riding rises above hardly But speculation. *11 passing of I ease,. think that while phase the ac confining liability, well-settled cording the failure to rea exercise rule, sonable care under circumstances before the the defendant, (cid:127) the court in effect holds him liable without requiring any such to be shown. We failure have a in case the de fendant has been in held heavy liable for an damages injury which, far as so evidence shows, never .any occurred before, and has never since, occurred in thousands of tests, the in contrivance same condition. All the on evidence is to the point effect that on the day to Mrs. injury Smith 522 used the people some contrivance, before some after Mrs. Smith’s without ride, untoward occur rence; that the same season during 17,985 used it, people during season before that 17,779 it, used during 32,440 it, season before that day used all itas was on the far of, so injury complained as all without known, and There was complaint. evidence of one lady’s having ankle it. sprained from Such a landing proportion would seem to result injury from almost likely any activity, under the safest conditions It imaginable. would, Ias see it, rebut the contention that operator the contrivance should, before the acted in injury have anticipation occurred, it, accordingly exercised care is, long so —that the contrivance continued and I find no actual order, evi dence that out respect order when the .any plain tiff it. In the rode on majority opinion, possibility disorder or is, I think left to disrepair, be inferred far too fact accident; the mere then failure exer cise reasonable 'in care preventing disorder or disrepair so inferred likewise left to1be inferred without sufficient basis in facts testified to. The of all those experience rode after seems to' me before plaintiff negative any inference that the was out of contrivance order. The mere 537
CARLIN v. SMITH. Dissenting Opinion. of the defend
fact of accident on premises appliances defendant with sufficient to course, charge ant not, Case, 80 Md. v. etc. Co. Washington liability. Turnpike Green, v. Steam. Md. Pillard Ches. 45; 217; Arnold v. 95 36, Co., v. 128 Md. 124 United 468, 474; Railways, Md. Callis Blaul, Carlin v. 28, 35; 120 Md. 406, 411; Coughlin Krout, Md. 140. Co., Conn. 63, v. Connecticut
In the case of Godfrey contrivance court had to- consider an -a consid- similar to the now under to have been one appears in that contrivance there was no- canvas eration, except “In the con- the rollers. belt running “when the seat is forward court, trivance,” tipped said off from seat slide occupants pulling lever, downward over chute; roller and thence on to top *12 two, a between with each other rollers successively, bump the final bump until over lowest arrive roll And near the exit the building.” floor upon ground “More court said: in discussing question liability in in this kind are amuse- than constructions of use sixty In in more 1920, the United 'States. the year ment resorts of, and than the one 11,000 patronized complained persons than in Hartford. 15,000 complaint similar one No more ** * The mere made except plaintiff. by anyone not some or condition cause possibility does not the classification occur, justify reasonably likely in in its itself or of an instrument >asinherently dangerous * * * instance the accident to- the The operation. single if it be admitted that it he claims plaintiff, happened even in use did, not reveal existence of danger it does any which should have been antici- the contrivance reasonably It conclusion that reasonable- would pated. justify when balanced care had not been previously exercised, evidence more than unquestioned 25,000 used this and another it have like without persons -appliance in view of such single complaint injury. Moreover, in of this- not be device, could experience CARLIN v. SMITH.
Dissenting Opinion. found, that there was fault reasonably or danger in its apparatus or itself, and careful customary which use, the defendants or, knew exercise the care imposed them, upon should have known. From examination whole record, is evident that in this case evi- there is no dence to show ‘the dangerous construction’ of this or device, its ‘negligent or that it was out operation,’ of order re- or pair, or that the on which it located premises are not rea- visitors, safe for sonably to' reveal fact which tends 'any prove contrivance, while should rea- be to inflict sonably expected There- injury upon any person. fore the the Otisco defendant, Amusement Company, had the care immediate supervision premises fail lin apparatus, did not to' exercise the care any respect law circumstances.” required In Co., v. Fenner Atlantic Amusement L. 691, N. J. the plaintiff’s heel had been in a on a similar caught roller around, contrivance, and had been she twisted thrown for ward head foremost, bumped every roller; court found ground liability proprietor. &
In Denver Park Amusement Co. 2 Fed. Pflug, (2d) a woman on a 961, broke There riding belt” moving leg. was evidence that 60,000 given children, persons, including had used the same season, contrivance without during injury. (Circuit Court Court of 8th Appeals, Circuit) said.: thing “No ever before. Past his happened tory would not experience have -to suggested prudent *13 men that it would but on the happen, that contrary expe rience, at would indicative that it suggestive be would all, not and could not and the defendant not under happen, duty what did guard against happen.” Yonkers,
In Hubbell v. 104 said: 434, N. Y. P'eckham, J., “That which never before, and which its char happened acter is such as not to to' occur men naturally prudent cannot, guard its at when in the happening course all, furnish years does for happen, good ground a charge in not negligence foreseeing possible happening guard- i;. 539 BURKHARDT.
KOLB
Syllabus. And Dallas v. see contingency.” remote iug against A. L. R. 13, L. and note 29 A. R. 927, Maxwell (Tex.), 29. has been conclusion these
Upon principles, my be reversed. ease should the present judgment A. BURKHARDT. HENRY KOLB vs. WILLIAM Busi- Requirement Carrying on Brokers—License Estate Real — Transaction. ness—Isolated nor the location broker, real estate the residence Keither to the place is decisive as matter of his subject agency, of determining for the business, purpose his carrying re- 493, ch. a license 1918, imposing of Acts the applicability City. in Baltimore such business on those on carrying quirement p. a license on those 1918, imposing requirement Acts ch. 493, (cid:127) real estate Baltimore on the business of broker carrying iso- merely single, does not Oity, apply performs one of a or business real pertaining lated act transaction farm without broker, reward, of a for a estate sale form of engage any his attempt intention 543, 545 pp. such business. 11th, 1925. Decided June (Son- from the Court of Baltimore City Superior
Appeal ter, J.). A. William Burkhardt Kolb.
Action by ag’amst- Henry Erom defendant Affirmed. a judgment appeals. plaintiff, J., Urwer, before O. Bowd, argued cause Oe- Parke. etttt