Carlin v. Smith , 148 Md. 524 ( 1925 )

It seems to me that the testimony tracing the injury to a bump on a roller in the contrivance on which the plaintiff was riding hardly rises above speculation. But passing that phase of the case, I think that while confining liability, according to the well-settled rule, to a failure to exercise reasonable care under the circumstances before the defendant, the court in effect holds him liable without requiring any such failure to be shown. We have a case in which the defendant has been held liable in heavy damages for an injury which, so far as any evidence shows, never occurred before, and has never occurred since, in thousands of tests, with the contrivance in the same condition. All the evidence on the point is to the effect that on the day of the injury to Mrs. Smith 522 people used the contrivance, some before and some after Mrs. Smith's ride, without any untoward occurrence; that during the same season 17,985 people used it, during the season before that 17,779 used it, and during the season before that 32,440 used it, all as it was on the day of the injury complained of, so far as known, and all without such complaint. There was evidence of one lady's having sprained an ankle in landing from it. Such a proportion of injury would seem likely to result from almost any activity, under the safest conditions imaginable. It would, as I see it, rebut the contention that the operator of the contrivance should, before the injury occurred, have acted in anticipation of it, and exercised care accordingly — that is, so long as the contrivance continued in order, and I find no actual evidence that it was in any respect out of order when the plaintiff rode on it. In the majority opinion, the possibility of disorder or disrepair, is, I think left to be inferred too far from the mere fact of accident; and then a failure to exercise reasonable care in preventing the disorder or disrepair so inferred likewise left to be inferred without sufficient basis in facts testified to. The experience of all those who rode before and after the plaintiff seems to me to negative any inference that the contrivance was out of order. The mere fact of accident on the premises or appliances of the defendant is not, of course, sufficient to charge the defendant with liability. Washington etc. Turnpike Co. v. Case, 80 Md. 36, 45;Arnold v. Green, 95 Md. 217; Pillard v. Ches. Steam. Co.,124 Md. 468, 474; Callis v. United Railways, 128 Md. 406, 411;Coughlin v. Blaul, 120 Md. 28, 35; Carlin v. Krout,142 Md. 140.

In the case of Godfrey v. Connecticut Co., 98 Conn. 63, the court had to consider an injury on a contrivance which appears to have been similar to the one now under consideration, except that in that contrivance there was no canvas belt running over the rollers. "In the operation of the contrivance," said the court, "when the seat is tipped forward by pulling the lever, its occupants slide off from the seat and on to the top roller in the chute, and thence downward over the other rollers successively, with a bump between each two, until they roll over the lowest and arrive with a final bump upon the ground floor near the exit from the building." And in discussing the question of liability the court said: "More than sixty constructions of this kind are in use in amusement resorts in the United States. In the year 1920, more than 11,000 persons patronized the one complained of, and more than 15,000 a similar one in Hartford. No complaint was made by anyone except the plaintiff. * * * The mere possibility of injury through some cause or condition not reasonably likely to occur, does not justify the classification of an instrument as inherently dangerous in itself or in its operation. * * * The single instance of the accident to the plaintiff, even if it be admitted that it happened as he claims it did, does not reveal the existence of any danger in the use of the contrivance which should have been reasonably anticipated. It would not justify the conclusion that reasonable care had not been previously exercised, when balanced against the unquestioned evidence that more than 25,000 persons have used this appliance and another like it without a single complaint of injury. Moreover, in view of such experience in the operation of this device, it could not be found reasonably that there was any fault or danger in the apparatus itself, or in its customary and careful use, which the defendants knew or, in the exercise of the care imposed upon them, should have known. From examination of the whole record, it is evident that in this case there is no evidence to show `the dangerous construction' of this device, or its `negligent operation,' or that it was out of order or repair, or that the premises on which it is located are not reasonably safe for visitors, or to reveal any fact which tends to prove that this contrivance, while in operation, should reasonably be expected to inflict injury upon any person. Therefore the defendant, the Otisco Amusement Company, which had the immediate care and supervision of the premises and apparatus, did not fail in any respect to exercise the care which the law required in the circumstances."

In Fenner v. Atlantic Amusement Co., 84 N.J.L. 691, the plaintiff's heel had been caught in a roller on a similar contrivance, and she had been twisted around, thrown forward head foremost, and bumped over every roller; but the court found no ground of liability in the proprietor.

In Denver Park Amusement Co. v. Pflug, 2 F.2d 961, a woman riding on a moving belt broke her leg. There was evidence given that 60,000 persons, including children, had used the contrivance during the same season, without injury. The Court (Circuit Court of Appeals, 8th Circuit) said: "No such thing had ever happened before. Past history and experience would not have suggested to prudent men that it would happen, but on the contrary that experience, if suggestive at all, would be indicative that it would not and could not happen, and the defendant was not under a duty to guard against what did happen."

In Hubbell v. Yonkers, 104 N.Y. 434, Peckham, J., said: "That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency." And see Dallas v. Maxwell (Tex.), 27 A.L.R. 927, and note 29 A.L.R. 13, 29.

Upon these principles, my conclusion has been that the judgment in the present case should be reversed.