
    Durbin, Appellee, v. The Humphrey Co., Appellant.
    (No. 26628
    Decided March 23, 1938.)
    
      
      Messrs. Harrison & Marshman and Mr. Fred A. Dewey, for appellee.
    
      Messrs. McKeehan, Merrick, Arter & Stewart and Mr. Thomas V. Koykka, for appellant.
   Day, J.

The sustaining of appellee’s motion for a new trial, after setting aside a judgment rendered in favor of appellant upon its motion for a directed verdict, took away appellant’s right to have final judgment entered in its favor, and is a final order from which appeal may be prosecuted. Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, 160 N. E., 629; Hocking Valley Mining Co. v. Hunter, 130 Ohio St., 333, 199 N. E., 184; Michigan-Ohio-Indiana Coal Assn. v. Nigh, 131 Ohio St., 405, 3 N. E. (2d), 355; Murphy v. Pittsburgh Plate Glass Co., 132 Ohio St., 68, 4 N. E. (2d), 983.

It is the contention of appellant that the evidence adduced by appellee does not present facts from which negligence can reasonably be inferred; that appellee’s own testimony discloses that whatever happened was solely the result of the normal movements of the car; and that the movements were not, as claimed by appellee, different or unusual, but merely appeared to her to be so, due to the difference in the position of the seat she occupied. -

Appellant argues that while appellee testified that she was thrown forward with considerable force, different from that which she had experienced on this device on previous occasions, she made it plain that this was so because, seated as she was on the inside of the car, the centrifugal force tended to thrust her forward; and that from this, negligence cannot reasonably be inferred.

Appellee argues that on the occasion complained of the speed of operation was more rapid and the force of the tilting and resulting jolt more violent than ever before; further that if it be true that the position which she occupied in the seat was more dangerous than the rest, due to its particular location, then it was appellant’s' duty to warn hér of the danger inherent in that location, and that failure so to do constituted negligence.

The motion to direct a verdict presents to the trial court the question whether the evidence adduced by appellee is sufficient in law to present a jury question on the issue of appellant’s alleged negligence.

In ruling upon this question, the court cannot make a finding of fact, but must proceed on the assumption that the facts' which the evidence tends to prove, and all reasonable inferences deductible therefrom, are, for the purpose of the motion, admitted to be true. Ellis & Morton v. Ohio Life Ins. & Tr. Co., 4 Ohio St., 628, 64 Am. Dec., 610; Hubach v. Cole, ante, 137, at 143; Wells v. Van Nort, 100 Ohio St., 101, 125 N. E., 910; Hoyer v. Lake Shore Electric Ry. Co., 104 Ohio St., 467, 135 N. E., 627; Dick v. Railroad Co., 38 Ohio St., 389; Schnable v. Cleveland, C., C. & St. L. Ry. Co., 102 Ohio St., 97, 130 N. E., 510.

In determining its legal sufficiency, the trial court must construe the .evidence most strongly in favor of the party against whom the motion is directed. Hamden Lodge v. Ohio Fuel Gas Go., 127 Ohio St., 469, 189 N. E., 246; Hubach v. Cole, supra.

The sufficiency of the evidence for submission to the jury is', in Ohio, no longer tested by the presence of “any evidence, however slight.” The decision in the case of Hamden Lodge v. Ohio Fuel Gas Go., supra, abrogated the “scintilla rule” of evidence, and in its place formulated a new rule or test, namely, that if, after giving the evidence a construction most strongly in favor of the party against whom the motion is made, reasonable minds can come to but one conclusion, and that conclusion is adverse to such party, the evidence gives' rise to a question of law. "When, however, the evidence is such that different minds may reasonably draw different conclusions therefrom, the question which the evidence presents is one of fact and should be submitted to the jury for determination. This rule was followed and applied in Hubach v. Cole, supra; Metropolitan Life Ins. Co. v. Huff, 128 Ohio St., 469, 191 N. E., 761; Bevan v. New York, Chicago & St. L. Rd. Co., 132 Ohio St., 245, 6 N. E. (2d), 982. See also Pence v. Kettering, 128 Ohio St., 52, 190 N. E., 216.

Where it is doubtful whether reasonable minds would differ in their inferences' from the evidence, the trial court should resolve the doubt against the movant.

Judge Zimmerman well states, in the case of Hubach v. Cole, supra, that “The rule of evidence in establishing the facts of negligence * * * is the same as applied to the determination of any other question of fact;” that negligence becomes a question of law “only when the evidence is such that reasonable minds cannot reas'onably draw different conclusions either as to the facts or as to the deductions from the facts.”

One of the grounds of negligence alleged in the petition in the instant case is that the amusement device was operated “at such a rate of speed as to cause the plaintiff to be thrown about in said car.” The evidence is to the effect that appellee had ridden on this device a number of times before; that on the occasion complained of, the speed of operation was more rapid and the force of the tilting and resulting jolt more violent than ever before; that the unusual rapidity of the speed and the violence of the jolts threw appellee out of her seat, and that her companion, who sat next to her, was similarly affected. The question whether the speed, method and manner of operation, and the character and force of the jolts, were consistent with the exercise of due care under the circumstances, and their causative relation to appellee’s injuries, are questions of fact for the jury. The evidence here adduced, as disclosed by the record, is not such as to warrant a trial court in saying that' reasonable minds could reasonably be of one accord as to the inferences to be drawn therefrom. On the contrary, it is our opinion that the evidence is such that it is reasonably possible for impartial men and women to fairly draw different conclusions therefrom. A motion to arrest such testimony from the jury should not be sustained.

This point in the case is dispositive of the only question which, in our opinion, the evidence fairly raises, and we do not therefore find it necessary to discuss the other questions of law which counsel, but not the record, present.

We hold that the motion by defendant for a directed verdict, made at the close of plaintiff’s testimony, raises a question as to the legal sufficiency of the evidence adduced to go to the jury, and should be overruled if the evidence is such that reasonable minds may differ as to the inferences to be drawn therefrom.

Judgment affirmed and cause remanded.

Zimmerman,. Williams, Myers and Gorman, JJ., concur.

Weygandt, O. J., and Matthias, J., dissent.

Matthias, J.,

dissenting. I concur in the restatement of law contained in the syllabus but, being of the opinion that the facts presented by the record in this case do not warrant a recovery of damages for the injury claimed to have been sustained, I cannot concur in the judgment rendered by the majority.

The electrically operated device known, as “The Bug” is not designed to operate smoothly, but on the contrary it is designed to operate by sudden and violent jerking and jostling, thus calculated to produce the very thrills which passengers seek and pay fox. In the absence of such conditions, “The Bug” would cease to be an attraction to those who, like the plaintiff, were looking for that sort of entertainment. There is neither claim nor proof of any mechanical defect in the apparatus or any difference of operation from that upon the several previous occasions when plaintiff had ridden and had thus become familiar with the method of operation, except possibly that she was seated in a different place or in a different position than theretofore.

The very lucid statement of Chief Justice Cardozo in the case of Murphy v. Steeplechase Amusement Co., 250 N. Y., 479, wherein recovery was denied for injury claimed to have resulted from a voluntary ride on a sporting instrumentality designed to produce thrills, which w*as called “The Flopper,” is so pertinent and pointed and so applicable to this case that the following portion thereof is quoted:

“The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. * # * The tumbling bodies and the screams and laughter supplied the merriment and fun. * # * One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. * * * The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its owin guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall.”

‘Weygandt, C. J., concurs in the dissenting opinion.  