Summary
In Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343 (1942), it was held that where it cannot be determined which of several possible causes produced an injury and some of these causes do not involve negligence on the part of the party charged, recovery cannot be had. The Court said that a judgment cannot be sustained where it rests upon conjecture and surmise.
Summary of this case from Scott v. LewisOpinion
No. 34918.
October 26, 1942.
1. THEATERS AND SHOWS.
One who participates in diversion afforded by amusement or recreational device "assumes the risks" of and the dangers that inhere in it so far as they are obvious and necessary.
2. THEATERS AND SHOWS.
A proprietor engaged in business of providing public recreation or amusement must exercise a reasonable degree of watchfulness to guard against injuries likely to happen in view of character of amusement.
3. THEATERS AND SHOWS.
Where healthy nine-year-old boy applied for privilege to skate in rink located in large municipality and did not inform agents in charge of rink that boy had never before skated, agents were entitled to assume that boy knew how to skate and was reasonably well able to take care of himself in that respect, and if proprietor of rink was liable for injuries sustained by boy resulting from series of falls, liability could not attach until such time when reasonable degree of watchfulness on part of agents would have disclosed boy's inability to skate and possibility of serious injuries resulting therefrom.
4. NEGLIGENCE.
Recoverable damages must be reasonably certain in respect to the efficient cause from which they proceed, and burden is on claimant to show by preponderance of evidence that person charged was wrongful author of that cause.
5. NEGLIGENCE.
Consecutive wrongs done by independent agents cannot be conjoined to increase or enlarge responsibility of one of them.
6. NEGLIGENCE.
When first of series of happenings is no wrong at all, it may not be conjoined to increase or enlarge responsibility for later wrongful acts.
7. NEGLIGENCE.
A defendant chargeable with a nonconcurrent wrong may be made liable for damages for his part when the damages are such that they may be apportioned and a portion thereof can be traced with reasonable certainty to the wrong of the defendant as the cause of that portion.
8. DAMAGES.
The peculiar nature of injury to nine-year-old boy resulting from series of falls which stirred into activity germ present in human body which may be stirred into activity by repeated trauma, was not one wherein absence of expert evidence might be supplied by common knowledge.
9. THEATERS AND SHOWS.
In action for injuries to nine-year-old boy resulting from series of falls on skating rink floor, sustained by boy who did not inform agents in charge of rink that he had never before skated, wherein liability of proprietor of rink, if any, was limited to damages resulting from falls sustained after reasonable degree of watchfulness by agents would have disclosed boy's inability to skate, boy had burden of proving case, which included tracing with reasonable certainty injuries sustained to falls which occurred after agents should have known of boy's inability to skate.
10. NEGLIGENCE.
Where it cannot be determined which of several possible causes produced injury complained of and some of the causes do not involve negligence of party charged, recovery cannot be had.
11. THEATERS AND SHOWS.
In action for injuries to nine-year-old boy resulting from series of falls on skating rink floor, sustained by the boy who did not inform agents in charge of rink that he had never before skated, wherein any liability of proprietor was limited to damages resulting from falls sustained after reasonable degree of watchfulness by agents would have disclosed boy's inability to skate, evidence was insufficient to trace injuries to boy with requisite certainty to falls which occurred after his inability to skate should have been known to the agents, so as to entitle boy to recover.
12. JUDGMENT.
A judgment cannot be sustained when resort to conjecture or surmise is necessary in order to arrive at conclusions embraced in the judgment.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Wallace Greaves, of Gulfport, for appellant.
An intelligent boy, 8 years and 11 months of age, is required to exercise degree of care for his safety that is ordinarily exercised by children of his age, mental capacity, knowledge and experience.
Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Hines v. Moore, 124 Miss. 500, 87 So. 1; Moeller v. Packard (Cal.), 261 P. 315; Studer v. So. Pac. R. Co. (Cal.), 53 P. 942; Young v. Small (Mass.), 73 N.E. 1019; Crosby v. Maine Cent. R. Co. (Me.), 93 A. 744; Spillane v. Missouri P.R. Co. (Mo.), 37 S.W. 198; Stegman v. Gerber (Mo.), 123 S.W. 1041; Battles v. United R. Co. (Mo.), 161 S.W. 614; Wilson v. Atchison T.S.F.R. Co. (Kan.), 71 P. 282; Chicago B. O.R. Co. v. Laughlin (Kan.), 87 P. 749; Burke v. Chicago City R. Co., 153 Ill. App. 388; Barton v. Van Gesen (Wash.), 157 P. 215; Fitzhenry v. Consolidated Traction Co., 64 N.J.L. 674, 46 A. 698; Anderson v. Cent. R. Co., 68 N.J.L. 269, 53 A. 391; Stamford Oils Mills Co. v. Barnes (Tex.), 128 S.W. 375.
In a suit by a bright boy 8 years and 11 months of age against the proprietor of a public roller skating rink for injury sustained by using roller skates first time, where boy, by reason of his age, mental capacity, knowledge and experience, knew and fully appreciated dangers naturally arising out of use of the skates and had capacity to exercise due care for his safety, the court should declare his responsibility in the premises as a matter of law.
Studer v. So. Pac. R. Co. (Cal.), 53 P. 942; Young v. Small (Mass.), 73 N.E. 1019; Spillane v. Missouri P.R. Co. (Mo.), 37 S.W. 198; Stamford Oil Mills Co. v. Barnes (Tex.), 128 S.W. 375.
Roller skates are of such general use, especially among children of tender years, and they, and their uses by children, constitute such a part of the common knowledge of every person, including normal eight year old children, that the court judicially knows such skates are of simple construction and are free from dangers concealed from the observation of normal children, and that it is a universal custom for children below and above the age of eight years to use them safely, without assistance or instructions.
Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Luckett v. Louisiana Oil Corporation, 171 Miss. 570, 158 So. 199; Myers v. Tims, 161 Miss. 872, 138 So. 578; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Temple v. McComb City Electric Light Power Co., 89 Miss. 1, 42 So. 874.
An intelligent boy, 8 years and 11 months of age, of normal size and appearance, who had observed the use of roller skates by children younger and older than himself over a period of several years, assumed the risks arising out of the danger of falling when he voluntarily used a pair of roller skates the first time.
McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Batson v. Western Union Telegraph Co. (5th C.C.A.), 75 F.2d 154; Stamford Oil Mills Co. v. Barnes (Tex.), 128 S.W. 475.
An intelligent boy, 8 years and 11 months of age, who was acquainted with the use of roller skates by children younger and older than himself, was guilty of negligence in attempting to skate on such skates for the first time, without any support or assistance, and such negligence is the sole proximate cause of an injury sustained thereby.
See authorities supra.
A proprietor of a public roller skating rink was under no duty to give voluntary assistance and instructions to an intelligent boy 8 years and 11 months of age, of normal size and appearance, who had a sufficient acquaintance with such skates and their uses to know he would fall if he attempted to skate for the first time unsupported and unassisted, where he failed to inform such proprietor that he had never used roller skates before and failed to request assistance, and it was error for the court to instruct the jury in a suit for damages arising out of an injury to such boy, while he was voluntarily using roller skates on the floor of the rink of the proprietor, that the proprietor was under such duty.
On the question of the duty of the appellant to the appellee, see authorities supra, particularly Stamford Oil Mills Co. v. Barnes (Tex.), 128 S.W. 375.
On the question of the lack of knowledge on the part of the appellant that appellee had not used roller skates before, see Williams v. Lumpkin, 169 Miss. 146, 152 So. 842, and Jabron v. State, 172 Miss. 135, 159 So. 406.
Damages for which a recovery may be had in a tort action must be proven with reasonable certainty, both as regards their nature and extent and in respect to the cause from which they proceed.
S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470.
Bidwell Adam and Gaston H. Hewes, both of Gulfport, for appellee.
Appellee based his cause of action against appellant on the grounds that had appellant not been guilty of wanton and gross negligence but had exerted reasonable care in looking after the safety of the minor child, he would not have been injured.
Appellee contended and proved to the satisfaction of the jury that he was injured as a result of the negligence of the appellant, acting through her employees, in allowing him, as a novice, to attempt to skate with ball bearing skates on a hard surface floor without any care or attention being paid to him and being allowed to fall upon said hard, smooth, slick and wooden floor so many times that his hip and side and knee were so severely injured that he will be, perhaps, a cripple for life. The jury decided in said cause, from the evidence, that neither the appellant nor her agents had exercised reasonable care, or for that matter any care at all, towards the minor child, appellee here, but that the said agents or employees of the appellant, who were male persons, in total disregard of the said minor child, were engrossed in the act of enjoying themselves in skating with young ladies who were in the skating rink at said time. The evidence showed that despite the fact that the appellee fell numerous times the appellant, through her attendants, allowed the appellee to remain on the skates in said rink and to continually fall so many times that he permanently injured himself. It was shown that by the exercise of any degree of care the appellant and her attendants should have seen, if they did not see, that the appellee was in grave danger of serious injury to himself if allowed to remain on the floor of the skating rink.
By a careful reading of the authorities cited in the brief of appellant, it will be seen that the authorities cited by appellant are not in point and do not need an answer. The case of Meridian Amusement Concession Company v. Roberson et al., 188 Miss. 136, 193 So. 335, is a case on all fours with reference to the point of law involved in this controversy. In that cause, as in this cause, the lower court decided that the question involved was one for a jury to decide whether or not the life of a child (in this case, permanent injury) was due to the negligence of the employees of the appellant. In that case, as in this, the evidence conclusively showed that had any reasonable care in looking after the child been given, no injury of any type would have been suffered by a minor child.
Appellant, who will be called the defendant, operated a public skating rink in the City of Gulfport. A specified and exclusive period of time on each Saturday morning was set aside for the accommodation of children. On the Saturday morning here involved appellee, who will be called the plaintiff, appeared and paid his admission fee of ten cents, which fee included the use of a suitable pair of skates. Plaintiff was a healthy and intelligent boy approximately nine years of age. Although he had frequently seen children skating on the sidewalks and elsewhere, he had never himself skated, but of this he did not inform defendant's agents in charge nor did the agents make any inquiry in that regard. Upon attempting to skate, the plaintiff fell, and upon arising and renewing the attempt he fell again. According to the evidence, he did not at any time succeed in taking as much as two or three steps without a fall thereupon occurring; but plaintiff persisted nevertheless in his attempts until he had fallen in close succession some forty to fifty times. When having suffered this long succession of falls, plaintiff began to cry, whereupon for the first time one of defendant's agents came to his rescue and assisted him from the floor.
Plaintiff was then taken home and put to bed where he remained thirteen days, when he was removed to the hospital where an operation was performed upon his hip. The surgeon, as a witness, explained that there is present in the human body a certain germ which is likely to be stirred into activity by repeated trauma, its activity being manifested by attack on the bone at the point where the repeated trauma occurs, and that in children less than twelve years of age this likelihood in cases of repeated trauma will become a probability. Plaintiff remained in the hospital some three months, and is now an inmate of a crippled children's home.
On the opening question of liability, there is brought into view two well established rules. One is that a person who participates in the diversion afforded by an amusement or recreational device accepts, and assumes the risk of, the dangers that adhere in it so far as they are obvious and necessary. 4 Shearman Redfield on Negligence, Revised 1941 Ed., Sec. 647, p. 1566. And the other is that the proprietor engaged in the business of providing public recreation or amusement must exercise a reasonable degree of watchfulness to guard against injuries likely to happen in view of the character of the amusement. Meridian Amusement Concession Company v. Roberson, 188 Miss. 136, 193 So. 335.
Under the first of the above rules, the proprietor of a skating rink in a large municipality, where paved sidewalks abound, is entitled to assume, when a healthy boy of nine years appears and applies for the privilege to skate, that the boy knows how to skate and is reasonably well able to take care of himself in that respect, and if in any view the proprietor is to be charged with any responsibility to him as one who cannot skate, the proprietor must first be informed that the boy is wholly without experience as a skater, and as we have already mentioned, no such information, so far as the record shows, was given the proprietor, or any of her agents, when the plaintiff herein appeared and attempted to skate.
If, then, any liability is to attach against the proprietor on account of the happenings here, it must be because her agents in charge did not take the boy from the floor or give him any assistance after he had suffered falls in a sufficient number or in such manner that those agents saw thereby, or should have seen, under their general duty of watchfulness, that the boy was helpless to skate unaided, as he was persisting in the attempt to do, and that his continued efforts would in all probability result in further falls in repeated succession, as in fact did result.
For the purpose of this case, we will concede, although we do not so decide, that defendant is liable for the consequences of the series of falls which occurred after the time when a reasonable degree of watchfulness would have disclosed the total inability of the boy to skate and the likelihood of some serious injury on account thereof, and so doing we have two series of falls for the first of which we hold the defendant not liable and thereafter a second series for which we are conceding, although not deciding, that the defendant is liable; and this done, we are inescapably confronted by a further vital question with which we must now deal.
All the authorities agree that recoverable damages must be reasonably certain in respect to the efficient cause from which they proceed, and that the burden is on the claimant to show by a preponderance of the evidence that the person charged was the wrongful author of that cause. Here, we have a single and indivisible result, — an injury not apportionable so that a part may be traced to one cause and another part to another cause, and the damages apportioned accordingly. And thus the question is immediately presented: Did the ultimate single and indivisible result happen because of the earlier series of falls for which the defendant is not liable, or from the latter part of the series for which, by concession but not by decision, the defendant is liable? As will be later more particularly mentioned, there is no evidence on that issue, and in the absence thereof it is obvious that this question can be answered only by resort to surmise or conjecture.
To avoid such a resort, we are driven to one or the other of two alternatives, and the first of these is to say that the injury was the result of the two series of falls added together, thereby creating an essential whole. But this is of no aid, for manifestly a defendant cannot be held liable for the whole of a series of consecutive, and not concurrent, happenings when he is liable, if at all, only for a part. Consecutive wrongs done by independent agents cannot be conjoined to increase or enlarge the responsibilities of one of them. Bufkin v. Louisville N.R. Company, 161 Miss. 594, 599, 137 So. 517. For the stronger reason, when the first of a series of happenings is no wrong at all, it may not be conjoined to increase or enlarge the responsibilities for later wrongful acts. A defendant chargeable with a nonconcurrent wrong may be made liable for damages for his part when the damages are such that they may be apportioned, and a portion thereof can be traced with reasonable certainty to the wrong of the defendant as the cause of that portion; and this is as far as any of the cases, when closely examined, have gone. But, as already shown, we have no such case here as may be made subject to that rule.
We would have to say, then, and as a final alternative, that the part for which the defendant is liable contributed substantially to the result produced by the whole of the series; but so to do we must look to the evidence to see whether there is anything therein upon which we could safely or dependably so say, rather than by recourse again to surmise or conjecture. All that the evidence contains on that subject is that the surgeon said — giving that testimony as favorable an interpretation in behalf of the plaintiff as the jury could be permitted to indulge — that the injury suffered by the plaintiff was the probable result of repeated trauma, but whether of two falls, or three or five, or more, he did not say, or whether after the first two to five, the others would or would not be of substantial effect as contributing causes he did not say; and the peculiar nature of the particular injury is not one wherein the absence of expert evidence may be supplied by common knowledge. See Kramer Service, Inc., v. Wilkins, 184 Miss. 483, 499, 186 So. 625. And it is hardly necessary to add that the burden was on the plaintiff to prove the facts essential to the maintenance of his case.
The rule is that no recovery can be had where there is no showing from which it can be determined which of several possible causes produced the injury where some of the causes did not involve negligence of the party charged. Bailey Personal Injuries (2nd Ed.), p. 148. For all that the evidence shows, the injury sued for may, with as much probability as otherwise, have resulted from the first among the series of falls, or, in other words that the ultimate injury may have developed, although the second series of falls had not occurred. Compare Taylor v. City of Yonkers, 105 N.Y. 202, 209, 11 N.E. 642, 59 Am. St. Rep. 492, and the elaborate discussions in Cook v. Minneapolis, etc., R. Company, 98 Wis. 624, 74 N.W. 561, 40 L.R.A. 457, 67 Am. St. Rep. 830, and Laidlaw v. Sage, 158 N.Y. 73, 79, 101, 52 N.E. 679, 44 L.R.A. 216. To go further, we would have to travel on guess on conjecture or surmise, and as to this, we have repeatedly held that however adequate surmise may be deemed as sufficient to actuate people when the life, liberty or property of other persons is not involved, no judgment in a court of law may be sustained when resort to conjecture or surmise is necessary in order to arrive at the conclusions embraced in the judgment.
It is our opinion, therefore, that the injury of which plaintiff complains has not been traced with requisite certainty to an efficient cause for which the defendant is responsible, and that the peremptory charge requested by defendant should have been given.
Reversed and judgment here for appellant.