
    Rathbun, Appellant, v. The Humphrey Co., Appellee.
    (No. 22592
    Decided February 24, 1953.)
    
      Messrs. Gaines £ Hirsch, for appellant.
    
      Messrs. Arter, Hadden, Wykoff £ Van Duser, for appellee.
   Hurd, P. J.

This is an action in tort, instituted in the Court of Common Pleas to recover for personal injuries received by a patron of an amusement park during a ride on an amusement device. Plaintiff appealed from a judgment entered pursuant to a verdict for defendant.

Defendant, The Humphrey Company, owns and operates an amusement park in the city of Cleveland known as Euclid Beach Park. One of the attractions is a roller coaster called the “Thriller.” It is composed of three separate cars with four seats each, the cars being joined together to make up a train. The train operates on rails supported by a trestle, built in the form of declivities, dips and curves. It is pulled by a chain from the loading platform to the top of the trestle. Prom there it descends by force of gravity. The ride covers a distance of about 2,800 feet in approximately two minutes.

Plaintiff, a young woman of about 32 years of age, entered the Thriller with her mother. They occupied the first seat of the second car, the mother to the right or outside and the daughter to the left or inside. The car ahead was filled to capacity with eight persons. The seats in back of plaintiff in the second car were wholly or partially filled. Plaintiff testified that as they were approaching the return curve she turned slightly to her mother and told her to scream as they were approaching a series of dips. Plaintiff testified further that when she was thus turned slightly to her right a branch of a tree suddenly whipped down from foliage overhanging the track area on the return or lower curve striking her forehead, nose, and left eye and breaking her eyeglasses in such a manner that the left lens was shattered and the frame fell into her mother’s lap. She claimed that she was seriously injured when pieces of the shattered lens lodged in her eye.

Six grounds of error were assigned, two of which were abandoned in this appeal. Combining the first two assignments of error, plaintiff asserted that the trial court erred prejudicially, first, in permitting the manager of the Thriller to testify that during the summer of 1948 up to. and including September 26, 1948, the date of the injury, no person had ever complained to him of having been struck by a branch or limb of a tree during a ride, and, second, in permitting defendant to introduce testimony relative to the number of persons who rode the roller coaster on the day of the injury.

The courts are divided on the question of the admissibility and competency of evidence showing nonoccurrence or absence of other similar accidents in negligence cases generally. Some hold that such evidence is not admissible for the purpose of showing that the place of injury was free from danger. Others hold that such evidence is admissible for that purpose and that it tends to show reasonable care, thus negativing to a certain degree the charge of negligence. In any event, such testimony is admissible only if it has rational probative value bearing upon the issues made by the pleadings. It is never conclusive, its persuasive effect or weight being for the jury alone under proper instructions. As a general rule, such testimony is admitted as applicable to static conditions where the danger is not obvious.

Considering now the issues made by the pleadings in the instant case, the plaintiff alleged and the defendant denied that the proximate cause of her injuries was the negligence of the defendant, first, in failing to provide a route of travel which was reasonably safe for patrons to use; second, in designing, operating and maintaining the Thriller in close proximity to abutting and overhanging trees; third, in failing properly to care for said trees and in failing to exercise vigilance to provide patrons with a ride free from the danger occasioned by the presence of such trees, they being wholly under the control and management of the defendant; fourth, in permitting such tree and the branches thereof to become a source of danger to patrons using the roller coaster; and, fifth, in failing to warn plaintiff of the danger.

It appears from these allegations that an issue has been created relative to the static condition of the amusement device in relation to external conditions surrounding its design, operation and maintenance in the particular location close to overhanging and abutting trees. Was this operation as there conducted safe for patrons or was it dangerous ? How is this question to be determined? Is not experience a definite criterion, persuasive but not conclusive? We” think so. True it is, as plaintiff argues, that her claim is not based on any mechanical defect in the Thriller as such, nor is there any claim of improper mechanical construction. This removes from consideration the doctrine of res ipsa loquitur, but it does not remove from consideration the claim that the design, operation and maintenance of the device as located was dangerous for patrons under the static conditions there existing and upon which the claim of negligence is predicated.

In Cleveland & Buffalo Transit Co. v. Roderick (1918), 10 Ohio App., 119, evidence of nonoccurrence of similar accidents was held admissible for the purpose of showing that defendant was not guilty of negligence in not apprehending the accident where the danger was not obvious. In that case this court reversed and remanded the cause for prejudicial error in excluding such testimony.

In Witherspoon v. Haft (May 1952), 157 Ohio St., 474, 106 N. E. (2d), 296, the court, in affirming a judgment of the Court of Appeals for Franklin County, in relation to the test of experience, said on page 480, “and none of the witnesses who testified concerning their experience with this type of bleachers knew of arty accident resulting from a seat board slipping out of its brackets.” In tbe same case, the Court of Appeals (61 Ohio Law Abs.,T02,103 N. E. [2d], 275), had previously held that testimony of many years of experience with the same type of bleacher seats involved in that case was admissible as to nonoccurrence of accidents, but not conclusive. See, also, Railroad Co. v. Anderson, 11 C. D., 765, 21 C. C., 288.

In Murphy v. Steeple Chase Amusement Co. (1929), 250 N. Y., 479, 166 N. E., 173, where plaintiff sued for injuries sustained while using an amusement device known as the “Flopper,” Chief Justice Cardozo refers to evidence offered by the president of the amusement company to the effect that there had never been such an accident before and that, according to defendant’s evidence, 250,000 visitors “were at the Flopper in a year.”

In Carlin v. Krout (1923), 142 Md., 140, 120 A., 232, 29 A. L. R., 13, where plaintiff sued for injuries received on an amusement device known as an “Ocean Wave,” it was held that the fact no accident similar to plaintiff’s had occurred to any of the thousands of persons who had used the device during the two years which had elapsed since its installation, while not conclusive of the absence of negligence, might properly be considered on the question whether any part of the device was improperly designed or constructed.

To the same effect see, also, Godfrey v. Connecticut Co. (1922), 98 Conn., 63, 118 A., 446; and Denver Park & Amusement Co. v. Pflug (C. C. A. 8, 1924), 2 F. (2d), 961.

The case of Wray v. Fairfield Amusement Co.. 126 Conn., 221, 10 A. (2d), 600, is cited by plaintiff as being contra, but that case should be distinguished, as there the evidence of the number of passengers who had ridden the amusement device was excluded because the strap of one seat of the device which the plaintiff had occupied was defective and evidence of the entire number who had occupied other seats not defective would not be a reasonable test of experience, particularly in view of the fact that the plaintiff did not claim that either the construction or operation of the roller coaster in general was negligent.

We think that it should be noted also that the superintendent of construction and maintenance for 28 years and the man who built the Thriller, when called as one of plaintiff’s witnesses, was permitted to testify without objection on cross-examination by the defendant that in his years with the defendant it never had been brought to his attention by any person that any rider on the Thriller had claimed to have been struck by the branch of a tree and injured. By allowing this testimony without objection, plaintiff may have waived claims of error on this ground.

We conclude that, under the issues here made by the pleadings together with all the surrounding facts and circumstances appearing in the evidence, testimony tending to show the absence or nonoccurrence of similar accidents during the summer season of 1948 (to which the testimony was limited), including the number of riders on the day of the accident without injury (in excess of 5,000), must be considered to have a rational probative value, bearing upon the claim of negligence in the design, operation and maintenance of the amusement device in the place in question. To hold that plaintiff could create such an issue so general and comprehensive in its nature and implications and to deny the defendant the right to meet it by the test of experience would not be in accord with sound logic or judicial fairness.

For its fourth assignment of error, plaintiff asserted that the trial court erred in granting defendant’s request to charge before argument as follows:

“I say to you that it is the law of the state of Ohio that the obligation of The Humphrey Company is to provide for its patrons instrumentalities, such as the Thriller, which are reasonably safe for the purpose for which they are used and are intended to be used. This obligation means that The Humphrey Company must exercise such a degree of care in connection with the inspection and operation of its amusement devices as would ordinarily be exercised by an ordinary, careful and prudent person under the same or similar circumstances. ’ ’

It is well established that the owners or operators of amusement resorts and appliances are not insurers of the safety of patrons, and that such owners and operators owe the duty to exercise ordinary or reasonable care commensurate with the risk involved. See Smith v. Puritas Spring Park, 26 Ohio Law Abs., 505, and cases therein cited as follows: Maehlman v. Reuban Realty Co., 32 Ohio App., 54, 166 N. E., 920; and Lake Brady Co. v. Krutel, Admr., 123 Ohio St., 570, 176 N. E., 226. The great weight of authority in other jurisdictions is to the same effect.

While the charge of negligence was not directed to mechanical defects in the amusement device per se, an issue was made as to its safety in the particular location in which it was maintained and operated in close proximity to trees along the side of the track. We think that the duty of care implicit in this special charge applies not only to a part but to the total operation of the device and does not inject an issue not raised by the pleadings. The proprietor or operator is under an obligation to use ordinary care and diligence to put and keep the' place in a reasonably safe condition for persons attending in pursuance of his invitation. He is bound to use ordinary care for their safety and protection, the test being that degree of care which an ordinary careful and prudent person would exercise under the same or similar circumstances. If injury results from a breach of this duty, he is liable. We find no prejudicial error in this charge as, in our opinion, it is in accordance with the general rule applicable under the issues here made.

In her final assignment of error, plaintiff claimed that the judgment is against the manifest weight of the evidence. We may reverse on this ground only when the verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to result in a denial of substantial justice. Upon consideration of all the evidence submitted to the jury, we can not so conclude. The members of the jury were not obliged to rely entirely upon the testimony of the plaintiff and her mother as to the cause of her injury. There are many factors appearing in the evidence, too numerous to detail here, which would reasonably justify the jury in finding otherwise. Our view of the evidence in this case is such that whether the jury found either for plaintiff or defendant, we would not be justified in setting aside the verdict on the weight of the ■ evidence. Suffice it to say that the burden was upon the plaintiff to show by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries of which she complained. After a fair and complete trial, the verdict of the jury indicates conclusively that she failed to sustain the burden thus necessarily assumed by her. Consequently, the error assigned that the verdict and judgment are contrary to the manifest weight of the evidence cannot be sustained.

Since we find no error prejudicial to the rights of plaintiff, the judgment is affirmed.

Judgment affirmed.

Kovachy and Skeel, JJ., concur.

(Decided March 23, 1953.)

On Application for rehearing.

Hurd, P. J.

In an application for rehearing, counsel for plaintiff respectfully and most earnestly argue that this court has misconceived- the claims of plaintiff in determining that the trial court did not commit error prejudicial to the rights of the plaintiff in admitting evidence of nonoccurrence of similar accidents on the Thriller under the limitations imposed. For this reason we have once again reviewed the case.

Because of the nature of the arguments presented, we think it well to direct attention to some fundamental legal principles. Negligence is never presumed. The fact that an accident happened and that plaintiff was injured does not ipso facto establish liability against defendant. The plaintiff alleged negligence. The defendant denied it. This casts the burden upon plaintiff to prove by a preponderance of the evidence that defendant was negligent in one or more of the respects charged in the petition, and that such negligence was the direct and proximate cause of the injuries of which plaintiff complains.

The petition contains certain specifications of negligence (Nos. 3 and 4) charging failure on the part of defendant properly to care for the trees growing close to the Thriller, in failing to exercise vigilance to provide patrons with a ride free from danger, and in permitting such trees and the branches thereof to become a source of danger to the patrons. The effect of these claims is to charge a failure of custodial care in the operation of the amusement device. These specifications comprehended a continuing omission of a duty owed by defendant to its patrons to keep the ride free and safe from danger. But the petition also contains two other specifications of negligence (Nos. 1 and 2) which are of a different character, because therein defendant is charged with designing, operating and maintaining a roller coaster in such close proximity to overhanging and abutting trees that it thereby failed to provide a route of travel reasonably safe for patrons to use. These charges we refer to in the opinion as creating “an issue as to the static condition of the amusement device in relation to external conditions surrounding its design, operation, and maintenance in the particular location close to overhanging trees.” The term, “static,” was used to characterize a situation which is established and fixed so far as the structure of the roller coaster and the trees abutting such structure are concerned. The term, “static,” is derived both from the Greek and the Latin, the Latin being stations, the Greek being statilcos, meaning “causing to stand.” Hence, we have here a charge of negligence in operating and maintaining a roller coaster having a route of travel constant in its surroundings but made dangerous and unsafe by the close proximity of the abutting and overhanging trees. In our opinion these allegations raise an issue of negligence involving the character and location of the structure, which issue is so broad and comprehensive in nature as to justify the admission of evidence concerning nonoccurrence of similar accidents. This rule is founded upon reason and logic and is. we believe, in accord with the greater weight of authority. While such evidence may be considered as negative in character and not conclusive, yet it has probative value hearing directly upon the issues made. Evidence to the effect that of the thousands upon thousands of persons who rode the Thriller from the beginning of the season up to and including the date of the accident on September 26, 1948, not one complained of an experience similar in character to the complaint made by plaintiff certainly must have some probative value as negativing the charge of negligence made.

We can well understand the claims with respect to the dynamic forces of nature such as the weather and natural growth of trees and their branches so graphically described by plaintiff’s counsel. So far as we can discover, plaintiff was not restricted in the presentation of her evidence on those and related subjects. Those factors, together with all the plaintiff’s evidence presented in support of her petition, were questions of fact for the jury to weigh and consider under proper instructions of the court.

The third and fifth assignments of error with respect to the general charge of the court and one special charge before argument were abandoned by plaintiff on this appeal. The fourth assignment of error concerning another special charge before argument is discussed in the opinion.

We do not wish to belabor these matters unduly, but we are particularly desirous of having counsel understand our position concerning the issues presented by the pleadings and the evidence.

We conclude that we must adhere to our decision of affirmance for the reasons herein and heretofore stated. Therefore the application for rehearing is denied.

Application denied.

Kovachy and Skeel, JJ., concur.  