289 Mass. 326 | Mass. | 1935
These two actions of tort were tried together by a judge of the Superior Court without a jury. The two plaintiffs are husband and wife. The wife’s action is to recover damages for personal injury to herself. The husband’s action is to recover consequential damages for injury to his wife. For convenience the wife will be referred to as the plaintiff, unless otherwise indicated.
Findings by the trial judge establish the following facts: At the time of the accident the defendant was operating and in control of an amusement device known as the “Dragon Pit” at Revere Beach. “A patron upon admission entered a maze which led eventually to a different type of maze and then to some rooms with tilted floors, and finally to a narrow stairway leading to the top of a slide or chute. This chute was between three and four feet wide. The boards forming the chute or slide were kept highly polished like a dance hall floor. The slide was seventy-five to eighty feet long and the top landing was at an elevation of about twenty-one feet above the foot of the slide. The slide started down at an angle of about forty-five degrees for about forty feet to a height of about to one’s knee above the floor and then there were two or more wavelike humps before the slide came gradually to the floor level
After finding for the defendant on several counts of the plaintiffs’ declarations and on various contentions as to damages, none of which are material to the questions now involved in the cases, the judge found upon all the evidence that the defendant was negligent on the sole grounds that he failed to use reasonable care in so operating the chute or slide as to make it reasonably safe for use by the plaintiff in the way in which it was adapted for use and customarily used, and in failing to warn her of dangers in such use not apparent or readily ascertainable by her; that the evidence fell short of showing that the plaintiff’s own negligence contributed to her injury or that she had assumed the risk or that the defendant’s invitation to use the slide was limited to use at the plaintiff’s own risk. He found for both plaintiffs. The questions argued and now before us are whether the findings for the plaintiffs were justified and whether there was error in the granting of the plaintiff’s requests for rulings and in denying certain of the defendant’s requests and whether certain exceptions of the defendant to “so much of” certain specified parts of the judge’s findings “as constituted a ruling of law” should be sustained.
The bill of exceptions states that “In addition to the facts contained in the court’s ‘Findings’” other material evidence was presented at the trial. Some of this evidence tended to support the ultimate findings of the trial judge. The defendant testified that the attendant at the top of the slide was instructed to place bags underneath those who used the slide “so that they would not soil their clothes,” and that he thought such a bag would normally tend somewhat to diminish the speed of the person sliding down. This attendant further testified that, assuming a person had been properly instructed at the top, he arrived at the canvas mattress sitting upright and with barely enough force to go into the canvas. There was evidence that this attendant placed no bag under the plaintiff and that she went down the slide
We think that the judge’s subsidiary findings of fact (which are not now attacked) taken in connection with the evidence set forth in the bill of exceptions are sufficient to support his ultimate findings.
Conceding in the defendant’s favor that he lawfully could have exempted himself from liability for negligence in the operation of the device which he invited the plaintiff to use, if he had employed adequate means to bring to her attention the fact that his invitation was a qualified and conditional one (see Blanchette v. Union Street Railway, 248 Mass. 407, 413) we think the judge could find that the means employed were not adequate and would not have been adequate even if the plaintiff had been able to read. Taking into account the facts that the only warning given was by means of printed matter on the back of a small ticket which was purchased at a booth only four or five steps from the place where it was to be collected and torn up, we think the judge was justified in finding not only that the plaintiff did not know what was printed on the ticket, but also that a person of average intelligence and alertness would be unlikely to observe it, and would enter the “Pit” in the belief that he had all the rights of the ordinary business visitor with respect to so much of the premises as he was invited to use. On this point the case is governed in principle by Blanchette v. Union Street Railway, 248 Mass. 407, at page 413. Nor can it be distinguished from those cases holding that where no question under the interstate commerce act is involved, a passenger on a railroad is not bound by such limitations of liability as it is within the power of a common carrier to impose, if they are not brought to the attention of the passenger in any other way than by being printed in an inconspicuous manner upon an ordinary ticket or check. Brown v. Eastern Railroad, 11 Cush. 97. Malone v. Boston & Worcester Railroad, 12 Gray, 388. Hooker v. Boston & Maine Railroad, 209 Mass. 598, 600, and cases cited.
The series of cases cited by the defendant, such as Grace v. Adams, 100 Mass. 505, and Fonseca v. Cunard Steamship Co.
The judge was further warranted in finding that with no negligence on her part the plaintiff came down the slide with excessive speed and struck the mattress at the bottom so hard that she was substantially injured. He could have found that this was due to the negligence of the defendant’s servant at the top of the slide in not providing the plaintiff with a bag and seeing that she was properly seated upon it, or to the negligence of the defendant’s servant at the bottom of the slide in not stopping the plaintiff, or to both. We think he could also find that there was negligence in not warning the plaintiff that under the conditions under which she started down, excessive speed was possible. The case is distinguishable from Sullivan v. Ridgway Construction Co. 236 Mass. 75, where it was ruled that there was no evidence of negligence in the operation of the slide, that the plaintiff was familiar with all the conditions and that the injury was due to crowding.
The defendant’s exceptions to the granting of the plaintiff’s requests for rulings and to the refusal of certain of his own requests and to specified portions of the judge’s findings, in so far as they have been argued, are either immaterial under the findings made or have been disposed of by what has already been said. No error is shown. In each case the entry must be
Exceptions overruled.