*1 Pennsylvania Enterprises, Sports Rauch v. Appellant.
Inc., Argued October 9, 1950; reargued 1951. May 25, Before C. J., Stern, Drew, Stearns, Jones, Bell, JJ. Ladner Chidsey,
James J. for Burns, Jr., appellant.
Saul appellees. Chersky, by Opinion June 1951: Mr. Justice Chidsey, Charlotte Rauch Elmer M. her hus- Rauch, appellees, instituted this action band, in trespass Pennsylvania Sports and Enterprises, Inc., damages injuries the wife recover sustained patron appellant’s as a ice rink, when, patron. A *2 was run into and knocked down another jury and returned of both husband verdicts favor appeals wife. These from a of defendant’s are dismissal judgment for a and motion for non obstante veredicto new trial.
Pennsylvania Sports Enterprises, De- and on Inc., operated skating cember rink known an ice 9, 1941, Craig Street, “The North situate at 110 Gardens”, Pittsburgh. rectangular The rink extends in and skating length Craig Street. The Street to Neville by x 85 is surrounded seats area, feet, rows spectators. Craig The the rink is Street entrance to on body of the exit on and Street. main Neville skaters circle the rink The center counter-clockwise. fancy largely Beginners’ skating. at- used for sessions, by open although children and used tended also to Tuesdays Fridays. were held on and adults, Tuesday, ac- Mrs. on December Bauch, 9, 1941, age companied and her two 16,' children, James, age rink about 6:00 entered defendant’s Eleanor, p.m. entering beginners’ skating to attend a session. On immediately the Mrs. Rauch was aware ice, primarily patrons, boys, the coun- skated played games, ter-clockwise chased each other flow, the ice in all directions. There were uni- cut across they guards took action to at the but no rink, formed practically practices stop on con- which went these daughter tinuously. her Mrs. Rauch and skated during approximately half hour but time left an this danger. four occasions because of the at least the ice on cutting in and con- occasion skaters out last On the daugh- almost trary her flow skaters complained guard, hands. She her who, ter out of what although would see done, he could be he said companion girl nothing. a No did off skated guards any effort on the several any complained stop made at of. time to the conduct daughter min- Mrs. Rauch fifteen and her after ten or Rauch then utes returned to the ice because Mrs. “thought it was a little better”. improve Mrs. Rauch became
Conditions did not apprehensive safety daughter. told of her She daughter should her brother she when saw Mrs. tell him to her off that she, take ice, They themet son would meet them at the exit. Rauch, daughter rink and he took the rail of near the side midway Craig Street about between Neville her, left ends area. After the children Mrs. The conditions Rauch skated the center”. “toward complained only or of the flow existed on the inside *3 in Mrs. stream of skaters which about 18 feet width. was skating the of Rauch the inside reached and was on patrons, of defendant’s stream skaters when another of age, years boy an unidentified between 12 and cut into the into her, flow crashed skaters, injuries was her and caused the for which suit down brought. negligent in contend that defendant
Plaintiffs
was
orderly
maintaining
patrons, more
its
contrary
specifically
permitting skaiting
in
the
to
playing
games,
the
the
flow,
counter-clockwise
regard
cutting
to
in and out in all directions without
presence
appellant,
others.
contends
Defendant,
(1)
prove any negligence on
there
a failure to
that
was
proximate
Mrs. Rauch’s
was
cause of
its
which
any
wife-appellee
injuries;
(2)
in
was
event,
contributory negligence
guilty
as a matter of law
dangerous
full realization of the
condi-
she,
when
directly
the ice and
remained on
skated
into
tions,
danger
existed. The
in
order dismiss-
which
area
judgment non
ing
for
obstante
motion
veredicto
'
(cid:127)"
reversed.
be
must
testimony clearly
wife-
establishes
very
fully cognizant
appellee
conditions
appellant
in
hold
her endeavor to
asserts
which she
injuries
damage
responsible
she
hour
Pour
within half an
her
sustained.
times
husband
children entered
she
ice,
and her
after she
keep
being
daughter
in order to
left
her
bumped
and knocked down. She observed
into
contrary
many
flow,
to the
moved clockwise,
skaters
you, in all
and back into
directions”;
the ice
“cut across
doing
evening
of them
that. All
a lot
that “There were
cutting
they
the fourth
her
in.” On
occasion,
were
daughter
her
knocked out of
hands. She
almost
dangerous
guard
conduct.
complained
to the
.this
daughter left the ice
ten or fifteen
and her
She
they
looked “a little better” and
Conditions
minutes.
They again
approxi-
the ice.
skated
to
returned
improve.
mately
did not
hour and
situation
an
half
“They
in
skate
and out in
started
stated,
She
wrong
I
. .
and was
.”. She
her
afraid,
told
direction
they
her brother he
daughter
saw
that when
She nevertheless remained and
the ice.
off
take her
the center” where she had observed
toward
“skated
complained.
unremitting dangers of which she
Obviously,
Rauch
to match her
Mrs.
chose
skill
danger.
a manifest
what to
a skater
danger,
area of
deliber
this
reentered
When she
injury happening
ately exposed
to the risk of
herself
*4
anticipated
had
all
very
even
manner
the
acutely
so
she was
aware that she had
ing, and of which
knowledge
rink.
the
She had
of
children
sent
voluntarily
the'
realized
assumed
the conditions/
v. Van Kelton Amusement
Shields
See
risk involved.
Corp.,
127 N.E.
Emerson River
261;
Y.
v.
396,
228 N.
233 Wis.
Ballroom,
Moone 6 Ga. Smith, App. 65 S.E. 649, relied by appellees persuasive authority with issue of regard voluntary assumption wife’s The case risk. applicable principally that there the question reason was whether or complaint petition by means which suit in- a valid cause action stituted stated free from con- The negligence. petition tributory alleged that while at a engaged playing plaintiff game pool at one parlor end of a billiard several men who had been became engaged drinking heavily a quarrel at end room; suddenly fighters themselves the pool table precipitated which the ran using, him plaintiff such that he violence suddenness unable either to or defend and that himself; withdraw all of this oc- one of the proprietors curred while stood but nor did anything. neither said court held that, it could not in these be circumstances, conclusively could have plaintiff avoided the held injury by care ordinary exercise and diligence. In that
637 the issue had case, testimony taken; there been no case, instant In the sufficiency of the complaint. sur- is all the circumstances complete record Here, fully presented. accident have been rounding of the testimony with the facts it is the established, wife-plaintiff conclusively herself which establishes of the rudeness fully cognizant conducting with were patrons recklessness into and that she directly elected skate themselves, than danger along heart area rather skate the rink. safe side of comparatively It of the Court these duty circumstances to hold that wife assumed the risk of her actions. Con- do that conduct of the we wife bars re- cluding also covery by rights whose husband, unnecessary are it is derivative, determine whether there evidence to enable the to find jury sufficient appellant guilty negligence. and here entered appellant. reversed
Judgments Dissenting Opinion Me. Allen M. Justice Steaene: decided when contribu Court has repeatedly
This only judicially. It be declared tory may revealed that is so clearly where such negligence fair its as to disagree individuals could not reasonable et 325 Pa. 188 Altomari v. Kruger al., 235, existence: Transportation Com v. Philadelphia A. Van Note 828; v. et 71; Mogren ux., 45 2d Pa. A. 353 pany, 277, 150; A. 2d Callahan Pa. 58 507, Gadonas et al., my 2d 386. In 365 Pa. 76 A. & Co., Wishart Sons, of contributory negli or absence existence view the The obvious jury. paradox gence where, applying apparent becomes majority opinion the trial judge record discloses rule, the above (composing in the court below other judges two *6 court in banc) three of this justices Court do agree evidence establishes contributory- on the defendant. I affirm the judgments would entered on the ver- dicts.
Mr. Justice Mr. Justice Ladner join Jones this dissent. Appellant, Philadelphia.
Bellettiere, Argued April 1951. Before Stern, Stearns, JJ. Ladner Jones, Bell, Chidsey,