114 N.Y.S. 421 | N.Y. App. Div. | 1909
The complaint alleges thát the defendant was the owner of certain structures and grounds designed for public entertainment, in the borough of. Brooklyn, and of a certain railway known as the scenic railway, maintained in said grounds, and of the tracks and coaches or ears used in the operation of the said railway, upon which it invited the public to enter and ride on the payment of an admission fee; that the said railway was constructed and operated so as to cause the coaches at one part of the tracks of said railway to be precipitated suddenly down a steep incline and to violently lurch forward, which said mode or operation of the- said railway Was very dangerous, involving the risk of passengers being thrown forward out of said coaches; and that it was necessary in order to enable the passengers to guard against such danger that the said coaches or cars should be provided with appliances,, whereby the passengers might take hold and protect themselves from falling out, and that the passengers be warned of said danger and be warned of the necessity of holding fast during such dangerous movement of the said coaches or cars; that on the 24th day of June, 1905,, the defendant negligently and recklessly omitted to provide the said coaches or cars with any appliance of any kind, whereby the passen
.Here was an appliance which was devised for the entertainment of persons visiting this place of amusement. The attraction was the rapid motion of the car in going down these steep inclines. The plaintiff knew the general nature of the ride that she was about to take. She selected her own seat and voluntarily placed herself in a position in the car from which she was thrown, and she assumed the risk of being thrown from the car by reason of its usual operation. The car necessarily gave a lurch as it started' dpwn the incline. So far .as, appeal’s, there was nothing Unusual' or-extraordinary about the motion of the car; nor was there the slightest evidence that the car was out of order, or that anything happened upon this trip that was not the usual occurrence made necessary by the motion of the car. There was certainly no negligence .in the defendant failing-to notify passengers who placed themselves on the car to experience the sensation caused by the rapid change of motion that-they were to hold on to the car and not fall off. It was the case of a person putting herself in a position of obvious danger, where her companions had warned her that.it -was dangerous, for the purpose of receiving the sensation caused by the sudden.-and violent motion of the car, and it seems to me clear that the plaintiff assumed a. risk of the ride caused by the-usual and expected, ihotion of the car.
The case of Barrett v. Lake Ontario Beach Imp. Co. (174 N. Y. 310), relied upon by-the plaintiff,, is not at .all in point. There-, the deceased, while using what was called a toboggan -slide -at ..a place of public amusement, and when placing his sled in the trough, slipped-upon the platform, fell and received injuries-which caused his death. The deceased had mounted upon the steps and placed his sled in the trough of the slide when his feet shot out from Under him. The court said that the conten tion in that case was, that the toboggan structure was unsafe for the specific use for which the defendant intended and leased.it,, and the question was whether, the platform was built in so reasonably safe a manner as to prevent the Occurrence of accidents which men of ordinary prudence and knowing the nature of the public use to which it was to be put
The judgment, must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment. and order reversed, new trial ordered, costs to appellant to abide event.