Opinion
No. 6,854.
Submitted December 3, 1931.
Decided December 31, 1931.
Personal Injuries — Injuries Suffered by Mother in Attempt to Rescue Child in Imminent Danger — Complaint — Sufficiency — Merry-go-round — Duty of Operator — Parent and Child — Actionable Negligence — Contributory Negligence — Verdict — When not Excessive. Personal Injuries — Complaint — Sufficiency — Liberal Construction — Appeal — Disregard of Immaterial Defects. 1. The complaint in a personal injury action, attacked on the ground of insufficiency, must be liberally construed with a view to substantial justice between the parties, and the supreme court on appeal must disregard any error or defect therein which does not affect their substantial rights. Same — Actionable Negligence — Complaint — Contents. 2. Actionable negligence arises only from the breach of a legal duty, and to state a cause of action in a personal injury action the complaint must show, by a statement of facts — not legal conclusions — the duty resting on defendant, its breach, the resulting damages and that such breach was a proximate cause of the injury. Same — Plaintiff Injured in Attempt to Protect Child from Falling Off Merry-go-round — Complaint — Sufficiency — Contributory Negligence. 3. Complaint in a personal injury action, showing that plaintiff, mother of a child of tender years riding on a rapidly moving merry-go-round, believing that defendant would have an attendant on the platform of the machine to look after the safety of children, as it was its duty which it negligently failed to perform, seeing the child in imminent danger of falling off, and using all due care and caution for her own safety, attempted to board the moving merry-go-round in view of the existing emergency and in an effort to protect the child from falling, and in such attempt was injured, etc., held sufficient and not open to the objection that it disclosed contributory negligence on plaintiff's part. Same — Complaint — Insufficiency — When Pleading Deemed Amended. 3a. Where a complaint is attacked on appeal as insufficient but evidence is submitted without objection which aids the pleading, it will be deemed amended to supply the defect. Same — What Constitutes "Ordinary Care." 4. What is ordinary care varies according to the exigencies which require attention and vigilance — it must be proportionate to the danger; hence what would be ordinary care in a case presenting little danger, may be far from what is required in the way of ordinary care in a case of great danger. Same — Duty of Operator of Merry-go-round Toward Children — Extent of Ordinary Care for Their Protection. 5. Under the law of the case as declared by the trial court's instructions not objected to, that an operator of a merry-go-round is not an insurer but chargeable only with the exercise of ordinary care where he permits or invites unattended children of tender age, unable to appreciate the danger incident to an amusement device of that nature, the term "ordinary care" includes the taking of precautions to protect them, such as would not be necessary in the case of adults or older children. Same — Breach of Duty of Operator of Merry-go-round to Exercise Ordinary Care to Protect Children from Injury — Jury Question. 6. In the absence of statute declaring what specific precautionary measures an operator of a merry-go-round shall take to prevent injury to children of irresponsible age riding thereon, the question whether he breached his duty to use ordinary care in failing to take proper measures to guard such children from injury is one for the jury's determination. Same — "Actionable Negligence" — Definition. 7. Actionable negligence — the converse of reasonable vigilance — is the failure to do what a reasonably prudent person would ordinarily do under the circumstances, or the doing of what such a person would not have done under them.
6. Liability of proprietor for injury to patron on merry-go-round, see note in 61 A.L.R. 1297. Same — When Operator of Merry-go-round Guilty of Breach of Duty to Exercise Ordinary Care for Protection of Children. 8. Since it must be apparent to a reasonably prudent person that a rapidly moving merry-go-round is a dangerous place for very young children, an operator of such a device who does not promulgate and enforce rules prohibiting them, unattended, from riding thereon, or fails to provide an attendant, or furnish appliances for fastening them on in such a way as to avoid falling off, is guilty of breach of his duty to use ordinary care commanded under the circumstances. Same — Injury Suffered in Attempted Rescue of One in Danger — Damages Recoverable — Exception to Rule. 9. A person injured in the rescue or attempted rescue of another placed in a situation of peril by the negligence of a third person, may recover from the latter the same as though the negligence constituted a breach of duty toward him, unless in doing what he did he should have known as a prudent person that under the circumstances he could not escape injury. Same — Attempted Rescue by Mother of Child in Danger — Evidence Held not to Show Recklessness on Part of Mother. 10. Where the mother of a child three years and three months old had placed it on a merry-go-round under the impression that there was an attendant present to look out for the safety of the child as there had been on previous occasions, and on seeing the child in imminent danger of falling with no one about to extend aid, endeavored to jump on to the rapidly revolving platform in an effort to go to its assistance, evidence held not to sustain the contention that in doing so she acted in such reckless manner as to deprive her of the right to recover for injuries sustained. Same — When One Attempting to Rescue Another from an Apparent Danger not Entitled to Damages on Ground of Negligence on Part of Third Person. 11. If the emergency calling for quick action by a person injured in an attempted rescue is the culmination of a train of events set in motion by the negligent act of the party attempting the rescue, he cannot recover damages from the one charged with negligence in making the attempted rescue necessary. Same — Parent and Child — Duty of Parent — Unexplained Presence of Child in Known Place of Danger Prima Facie Evidence of Negligence on Part of Parent. 12. Parents of children so young as to be unable to take care of themselves owe the duty of exercising reasonable care and prudence for their safety; what is reasonable under the circumstances depending upon the age and intelligence of the child and the danger of the situation known, or which should have been known; hence, unexplained presence of such a child in a known place of danger is prima facie, not conclusive, evidence of contributory negligence on the part of the parents. Same — Circumstances Under Which Mother, Injured in Attempt to Save Child from Imminent Danger, not Guilty of Contributory Negligence. 13. Where the mother of a child three years and three months old had reasonable cause for believing that when she placed it on a merry-go-round there would be an attendant on the platform to look out for its safety while the device was in motion and in reliance upon the inference that, having been specially constructed for the carriage of children, it was as safe as it could be made, the jury were warranted in finding, in her action for damages sustained in an attempt to rescue the child from apparent danger, that plaintiff was not guilty of contributory negligence. Same — Verdict Held not Excessive. 14. Verdict for $3,000 awarded a woman teacher for injuries which confined her to bed for four weeks, made it necessary for her to walk on crutches for the same length of time, incapacitated her from driving a car and from doing other things she did before, and left her afflicted with bursitis of both knees, i.e., creaking of the knee joints, held not excessive. Same — When Verdict Complained of as Excessive, Conclusive on Appeal. 15. Unless the result of the jury's determination in a personal injury action is such as to shock the conscience and understanding, their verdict, claimed excessive, must be accepted on appeal as conclusive.
Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.
Messrs. Kremer, Sanders Kremer, for Appellant, submitted a brief; Mr. Louis P. Sanders argued the cause orally.
Mr. Harry Meyer, for Respondent, submitted a brief and argued the cause orally.
The complaint does not state facts sufficient to constitute a cause of action. Plaintiff alleges that while the merry-go-round was in motion she attempted to board it and in making this attempt she was struck by one of the wooden horses of said merry-go-round and knocked down, causing the injuries for which she seeks to recover damages. In other words plaintiff alleges that the proximate cause of the injuries sustained by her was her own act — attempting to board the moving merry-go-round. Under the rule established in this jurisdiction in a series of decisions it is obvious that the complaint is fatally defective. (See Badovinac v. Northern P. R. Co., 39 Mont. 454, 104 P. 543; Lynes v. Northern P. R. Co., 43 Mont. 317, Ann. Cas. 1912C, 183, 117 P. 81.)
From the allegations of the complaint plaintiff seeks to invoke the rule that to avoid the charge of deliberate negligence on her own part in attempting to surmount the revolving merry-go-round, she was engaged in an effort to rescue her infant daughter from imminent peril threatening great bodily injury. This rule as usually stated declares that it is not contributory negligence in a person to place himself in a position of great peril or danger in an effort to save the life of another or to rescue another from a sudden peril of great bodily injury due to the negligence of a third person, unless his act is rash or reckless in the judgment of prudent persons generally. In other words, in attempting to save the life of another person, or to save another from threatened great bodily injury, one may, within certain limitations of conduct, be justified in exposing himself to danger in a manner that, under other and ordinary circumstances would deprive him of legal redress for injuries sustained. Such is the theory on which plaintiff founds her alleged cause of action.
The rule invoked by plaintiff finds no application unless she proves by a preponderance of the evidence that the emergency which confronted her and induced her to attempt to rescue her infant daughter arose solely out of the negligence of the defendant. Herein if it appears that the danger confronting her infant daughter was even in part brought about from some lack of ordinary care on her own part which proximately led to or caused the making of the dangerous position, and if the plaintiff by her own lack of due care contributed to bring about such dangerous condition which put her daughter in peril, then she cannot recover and the judgment in her favor must be reversed.
A parent cannot recover for injuries sustained by his infant, if it appears "that the parents or guardians were negligent in permitting the child to be brought into a situation which subjected him to hazard and resulting injury." ( Kunz v. City of Troy, 104 N.Y. 344, 58 Am. Rep. 508, 10 N.E. 442; Canavan v. Stuyvesant, 12 Misc. Rep. 74, 33 N.Y. Supp. 53; see, also, Harrington v. Butte, A. P.R. Co., 37 Mont. 169, 16 L.R.A. (n.s.) 395, 95 P. 8; Conway v. Monidah Trust, 52 Mont. 444, 157 P. 178; Cummings v. Helena etc. Co., 26 Mont. 434, 68 P. 852; Pastore v. Livingston, 72 Misc. Rep. 555, 131 N.Y. Supp. 971.) Plaintiff's own case establishes contributory negligence precluding recovery, under the emergency theory. ( Miller v. Union R. Co., 191 N.Y. 77, 83 N.E. 583; Alabama Power Co. v. Conine, 213 Ala. 228, 104 So. 535; Galena Chicago U.R.R. Co. v. Fay, 16 Ill. 558, 63 Am. Dec. 323; Atlanta C. Air-Line Ry. Co. v. Leach, 91 Ga. 419, 44 Am. St. Rep. 47, 17 S.E. 619; White v. City of Chicago, 120 Ill. App. 607; De Mahy v. Morgan's L. T. Ry. S. Co., 45 La. Ann. 1329, 14 So. 61; Ingram v. Jackson, 206 Ill. App. 466.)
Where plaintiff's own negligence contributed to his injury, he cannot recover though defendant, by the exercise of reasonable care and prudence, might have saved him from the consequences of his contributory negligence. ( West Chicago St. R. Co. v. Liderman, 187 Ill. 463, 79 Am. St. Rep. 226, 52 L.R.A. 655, 58 N.E. 367.) All the cases agree that before there is ground for the application of the rule relied upon by plaintiff, the emergency, together with the existence of the danger or peril, must have been due wholly to the negligence of the defendant. ( Murphy v. Chicago Great Western R. Co., 140 Iowa, 332, 118 N.W. 390; Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 29 Am. St. Rep. 553, 13 L.R.A. 190, 28 N.E. 172; Lemay v. Springfield S. Ry. Co., 210 Mass. 63, 37 L.R.A. (n.s.) 43, 96 N.E. 79; note, pp. 57, 58, 37 L.R.A. (n.s.)
There is no escape from the conclusion, even conceding for the sake of argument, that the defendant was negligent in failing to comply with the duty imposed by plaintiff under the allegations of her complaint to watch and protect the infant child from dismounting or falling from the hobby-horse, that it was negligence on the part of the mother having the care of a child of such immature years to fail to perform the duty which the law imposed upon her when she placed her daughter on the hobby-horse, and in so doing she was a contributing factor in producing the dangerous situation which produced the peril and the emergency.
It is almost idle to attempt to sustain an argument as to the excessiveness of verdicts on the statutory ground, by citing other cases, but for such assistance as they may afford the court, we submit the following, in which verdicts for $3,000 for somewhat similar injuries sustained by women were held excessive: Kentucky Traction T. Co. v. Downing, 152 Ky. 25, 153 S.W. 32; Lexington R. Co. v. Woodward, 32 Ky. Law Rep. 653, 106 S.W. 853; Haugen v. Northern P. R. Co., 132 Minn. 54, 155 N.W. 1058; South Omaha v. Fennell, 4 Neb. (Unof.) 427, 94 N.W. 632; Gay v. Milwaukee etc. Light Co., 138 Wis. 348, 120 N.W. 283; see, also, Fitzgerald v. Chicago, 144 Ill. App. 462; Tri-City R. Co. v. Wiedenhoeft, 118 Ill. App. 581.
The cases cited in appellant's brief with relation to the alleged insufficiency of the complaint, do not take into consideration the fact that the injury here was caused by the negligence of the defendant in failing to perform its duty toward the child of the plaintiff, and by reason of that fact the plaintiff was thrown in an emergency situation upon which she was prompted to act, and, acting as she was compelled to under the situation, she comes within the rule laid down by this court: "That the general allegation that he was using due care and prudence and without contributing fault and carelessness on his part is as a matter of pleading sufficient to negative contributory negligence and to void the rule." ( Conway v. Monidah Trust, 47 Mont. 269, 277, L.R.A. 1915E, 500, 132 P. 26; Nilson v. City of Kalispell, 47 Mont. 416, 132 P. 1133.) Furthermore this case is distinguishable from the cases set forth in appellant's brief in that in those cases a negligent act was charged by which the plaintiff was compelled to jump and was guilty of contributory negligence without any such allegation as the plaintiff has here; but, in addition, the question of an emergency did not appear there and from the jump the plaintiff in those cases received the injury, while here the plaintiff did not receive the injury until after she had jumped and was safely upon the merry-go-round and was then struck by the horse. The jumping on the merry-go-round here being rendered necessary by the negligent act of the defendant combined with the emergency which the plaintiff had to meet, the plaintiff is not held guilty of contributory negligence nor is it necessary for plaintiff to plead the absence of contributory negligence. ( Peabody v. Northern P. R. Co., 80 Mont. 492, 261 P. 261; Bracey v. Northwestern Imp. Co., 41 Mont. 338, 137 Am. St. Rep. 738, 109 P. 706; Da Rin v. Casualty Co. of America, 41 Mont. 175, 137 Am. St. Rep. 709, 27 L.R.A. (n.s.) 1164, 108 P. 649.) The complaint here alleges: "But because of the carelessness and negligence of the defendant in failing to have someone in charge of said merry-go-round to watch said children and see that they did not fall off an emergency was created as herein alleged by reason of which plaintiff acted as she did and for the purpose of saving said Jean Brown from injury and as a result thereof received her injuries as herein described." Thus this allegation in connection with the others in the complaint show the necessity of the action of the plaintiff and eliminate the question of contributory negligence. ( Texas Midland R. Co. v. Byrd, 41 Tex. Civ. App. 164, 90 S.W. 185; Hoff v. Los Angeles P. Co., 158 Cal. 596, 112 P. 53; Clarke v. Pennsylvania Co., 132 Ind. 199, 17 L.R.A. 811, 31 N.E. 808; St. Louis, I.M. S.R. Co. v. Stamps, 84 Ark. 241, 104 S.W. 1114.)
In the case of Linthicum v. Truitt, 2 Boyce (Del.), 338, 80 A. 245, the court says: "It is the duty of a person owning and operating a merry-go-round to which the public is invited to ride for hire to provide for them a safe vehicle, machinery, appliances, guards and approaches for their protection against injury, and of such person the law exacts great care, diligence and skill in the management and operation of the same, and the use of wise precaution in protecting his patrons from injury." ( Sciachitano v. City of Beaumont, (Tex.Civ.App.) 266 S.W. 558; Bottcher v. Buck, 265 Mass. 4, 163 N.E. 182; Saunders v. Pierce, 107 Conn. 735, 139 A. 690; Longacre v. Yonkers R. Co., 236 N.Y. 119, 28 A.L.R. 1030, 140 N.E. 215; see, also, Jackson v. St. Paul City R. Co., 74 Minn. 48, 76 N.W. 956; Ziehm v. Vale, 98 Ohio St. 306, 1 A.L.R. 1381, 120 N.E. 702.)
The latest cases support the contention of plaintiff that it was the duty of the defendant and its agents to watch the child while on the merry-go-round after it had accepted the ticket for the ride and permitted the child to ride thereon unaccompanied by any parent, and whether or not they were negligent was a question for the jury. ( Goldstein v. People's R. Co., 5 Penne. (Del.) 306, 60 A. 975; Pittsburg A. M. Pass R. Co. v. Caldwell, 74 Pa. St. 421; Philadelphia City Pass R. Co. v. Hassard, 75 Pa. St. 367; Herbich v. North Jersey St. R. Co., 67 N.J.L. 574, 52 A. 357; Cleveland C.C. I.R. Co. v. Manson, 30 Ohio St. 451, 6 Am. Neg. Cas. 151; Eldred v. United Amusement Co., (Or.) 2 P.2d 1114; Brown v. Winnwood Amusement Co., (Mo.App.) 34 S.W.2d 149; Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 P. 902; Larkin v. Saltair Beach Co., 30 Utah, 86, 3 L.R.A. (n.s.) 982, 116 Am. St. Rep. 818, 83 P. 686; Hemmingway v. Chicago, M. St. P.R. Co., 72 Wis. 42, 7 Am. St. Rep. 823, 37 N.W. 804; Watt v. Glasgow Corp., 56 Scot. L.R. 225.)
"It is a question of fact for the jury to decide whether or not acts were committed which would constitute a breach of duty on the part of the proprietor of an amusement place." (24 Cal. Jur. 565; Johnstone v. Panama Pacific Exposition Co., 187 Cal. 323, 202 P. 34.)
Defendant was a common carrier, under the facts, and one within the standard applying to the degree of care of common carriers. Plaintiff's child was in the same position as a mother with a child riding upon a railroad train or a street-car, or in the same position as where the mother had placed her child on a street-car or railroad in charge of the conductor. ( Brown v. Rhoades, 126 Me. 186, 53 A.L.R. 834, 137 A. 58; Bottcher v. Buck, 265 Mass. 4, 163 N.E. 182; sec. 7815, Rev. Codes 1921; Phillips v. Butte Jockey Club, 46 Mont. 338, 347, 42 L.R.A. (n.s.) 1076, 127 P. 1011.) Section 7816, Rev. Codes 1921, provides: "A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care." ( O'Callaghan v. Dellwood Park Co., 242 Ill. 326, 134 Am. St. Rep. 331, 17 Ann. Cas. 407, 26 L.R.A. (n.s.) 1054, 89 N.E. 1005; Pontecorvo v. Clark, 95 Cal.App. 162, 272 P. 591; Bibeau v. Fred W. Pearce Corp., 173 Minn. 331, 217 N.W. 374.)
The rule with reference to emergency is laid down by this court in the recent case of Peabody v. Northern P. Ry. Co., 80 Mont. 492, p. 497, 261 P. 261, as follows: "One who, in a sudden emergency, acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. Such * * * act or omission * * * may be called a mistake, but not carelessness." (See, also, Henroid v. Gregson Hot Springs, 52 Mont. 447, 455, 158 P. 824.) In Nelson v. Northern P. Ry. Co., 50 Mont. 516, 148 P. 388, the court said: "When the attempt is to rescue a person it is necessary to a recovery by the rescuer for injury suffered by him, to show precedent negligence toward the person in peril or toward himself after the attempt has begun. When this appears, it is a question for the jury whether the attempt was made under such circumstances as to constitute rashness in the judgment of prudent persons." ( Green v. Higbee, (Utah) 244 P. 906; Mattson v. Minnesota N.W.R. Co., 98 Minn. 296, 108 N.W. 517; Kunz v. City of Troy, 104 N.Y. 344, 58 Am. Rep. 508, 10 N.E. 442; Pomeroy v. Westfield, 154 Mass. 462, 28 N.E. 899; Kambour v. Boston M.R.R., 77 N.H. 33, 45 L.R.A. (n.s.) 1188, 86 A. 624; Regan v. International Ry. Co., 205 App. Div. 425, 199 N.Y. Supp. 601.)
The following cases show the tendency of courts, following Montana decisions, not to hold verdicts, such as this, excessive in like cases, in each of which the plaintiff was a female teacher: Sand Springs v. Schrader, (1921) 82 Okla. 244, 22 A.L.R. 593, 198 P. 983; Wooding v. Thom, (1911) 148 App. Div. 21, 913, 132 N.Y. Supp. 50, 1151, affirmed without opinion in (1913) 209 N.Y. 583, 103 N.E. 1135; Cincinnati, N.O. T.P.R.C. v. Champ, (1907) 31 Ky. Law Rep. 1054, 104 S.W. 988; Alexander v. Rochester City B.R. Co., 59 Hun, 616, 12 N Y Supp. 685, Id., 128 N.Y. 13, 27 N.E. 950; Carmanty v. Mexican Gulf R. Co., (1850) 5 La. Ann. 703; Prellwitz v. Milwaukee Elec. R. Light Co., (1916) 163 Wis. 84, 157 N.W. 523; Davis v. Kelly, (1922) 152 Ark. 151, 237 S.W. 698; Bayard v. Franklin, (1909) 84 Neb. 150, 120 N.W. 914; City of Uvalde v. Stovall, (Tex.Civ.App., 1926) 279 S.W. 889; Anderson v. American Sash Door Co., (Mo.App. 1916) 182 S.W. 819.
The defendant, Columbia Amusement Company, a corporation, has appealed from a judgment rendered in favor of the plaintiff, Marie Brown, in a personal injury action.
The defendant operates several amusement devices at the Columbia Gardens, near Butte, among them a "merry-go-round," which consists of a central platform on which are mounted a melodeon and motor; a moving platform 7 feet wide furnished with hobby-horses and other seats for passengers and surrounded by a stationary platform 8 or 9 feet wide. The moving platform is 41 feet in diameter, giving it a circumference of less than 130 feet; at "top speed" it makes 6.75 revolutions per minute, and, consequently, has a maximum speed of approximately 10 miles per hour; it is raised but 4 inches above the outside stationary platform.
On June 15, 1930, Marie Brown, a school-teacher, took her daughter "Jean," three years and three months old, and a playmate a year older, to the Gardens, where the children had four rides on the merry-go-round. On each of these occasions two men were in charge of the device, one operating the machinery from the central platform and the other taking tickets and riding the moving platform, looking after the patrons. About 7 P.M. the party returned to the vicinity of the merry-go-round and, observing that she still had two children's tickets for it, plaintiff suggested that the children could have one more ride. She placed the children on rigid hobby-horses, told Jean to "hold on tight," and stepped to the outside platform. Plaintiff testified that she then gave the tickets to the ticket taker and pointed the children out to him. In this she is contradicted by the man in charge at that time, who was not one of the men in charge on the former occasions but had gone on shift at 6 P.M. His statement is that he never collected tickets until after the ride had started and made no collection on this occasion; that he saw plaintiff place the children on the horses and thought she was going to ride with them.
The hobby-horses were fitted with stirrups, but not with straps or rails for the protection of children. Plaintiff testified that she did not say anything to Jean as to getting off the horse, as she "did not want to put any such notion in her head," and that she remained on the outside platform and smiled and waved to Jean each time she passed "to reassure her that I was there by her."
After several revolutions plaintiff observed that Jean was off the horse, hanging to its tail, and crying; she looked for the man who always theretofore rode the platform, but he was not in sight; no one came to the rescue of the child while the platform made three more revolutions. The child was then at the outer edge in imminent danger of being thrown off, when plaintiff attempted to mount by seizing an upright thereon and jumping for the platform. Plaintiff was struck in the back by the forefeet of a hobby-horse, fell to the outside platform, but clung to the upright and was dragged halfway around the circle, when the merry-go-round stopped as a result of the action of the operator, who saw the child on the platform about the time the plaintiff saw her and threw out the clutch, which action causes the platform to come to a stop after it has made four or five revolutions.
About the time of the mother's accident the man in charge "made a dive" for the child, but she rolled to the outside platform and, as the speed was greatly decreased at the time, was unhurt.
The plaintiff suffered a fracture of the transverse process of the third lumbar vertebra and many minor, but painful, injuries.
Plaintiff estimated the velocity of the device, at the time of her injury, at ten miles per hour; the testimony on the part of defendant would indicate that it was not more than half that. The defendant did not attempt to refute the testimony that, prior to the occasion on which plaintiff was injured, it had always furnished a man to look after the children riding, in addition to the man who operated the machinery.
Defendant has made twenty-five specifications of error, under which counsel argue that the complaint does not state facts sufficient to constitute a cause of action, that the evidence is insufficient to warrant the verdict and judgment, and that the verdict is excessive.
1. As to the alleged insufficiency of the complaint, raised by general demurrer and on motion for nonsuit, defendant asserts that the complaint does not state ultimate facts either showing an emergency or to relieve plaintiff from the charge "that her attempt was the height of folly and contributory negligence of the grossest character."
The complaint alleges, in effect, that, having received a [1-3] child of tender years as a passenger, it became the duty of the defendant to provide someone to watch over and protect it; to have an attendant in charge to watch the children and see that they did not get off the horses and into a place of danger; and that, from past experience, plaintiff believed that the defendant would have an attendant on the platform on this occasion, and because of the negligent failure of the defendant to perform this duty "an emergency" was created. It is alleged that, in this emergency, the child being in danger of falling off, for the purpose of preventing such accident, and using all due care and caution for her own safety, plaintiff attempted to board the merry-go-round, but, because of the speed thereof and the fact that she was compelled to act hastily, she was struck, knocked down, and injured.
These allegations were aided and the complaint deemed amended [3a] by testimony introduced without objection, to the effect that the speed of the merry-go-round was approximately 10 miles per hour; that plaintiff scanned the platform for the attendant but he was not there, and that she therefore realized that it was "up to" her to do something, as it seemed that the child would be "dashed off the merry-go-round"; that she "figured" she could get on the platform and it was the only thing to do to save her child from being killed; and that she ran two or three steps before attempting to step up on to the platform. ( Dahlberg v. Lannen, 84 Mont. 68, 274 P. 151; Davis v. Claxton, 82 Mont. 574, 268 P. 787; Parsons v. Rice, 81 Mont. 509, 264 P. 396.)
A complaint must be liberally construed with a view to substantial justice between the parties, and the court must disregard any error or defect which does not affect the substantial rights of the parties. (Secs. 9164, 9191, Rev. Codes 1921; Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293; Davis v. Freisheimer, 68 Mont. 322, 219 P. 236.)
Actionable negligence arises only from the breach of a legal duty ( Jonosky v. Northern P. Ry. Co., 57 Mont. 63, 187 P. 1014; McIntyre v. Northern P. Ry. Co., 56 Mont. 43, 180 P. 971), and, to state a cause of action, it is necessary that the complaint disclose, by a statement of facts — not legal conclusions — the duty, the breach thereof, resulting damages, and that the breach of the duty was a proximate cause of the injury. ( Fusselman v. Yellowstone L. I. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 P. 473; Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 P. 336.)
The complaint, as amended by implication at least, meets the above requirements and is sufficient, if it correctly states the legal duty imposed upon defendant, and does not, in itself, disclose contributory negligence on the part of plaintiff. ( Birsch v. Citizens' Elec. Co., 36 Mont. 574, 93 P. 940; Freisheimer v. Missoula Creamery Co., 64 Mont. 443, 210 P. 329.)
What, then, was the duty which defendant owed under the circumstances related in the complaint? Plaintiff now contends that it was the same as that required of carriers of passengers for hire, which is "the utmost care and diligence for their safe carriage," the carrier being required to "provide everything necessary for that purpose." (Sec. 7815, Rev. Codes 1921.) However, the law of the case was fixed here by the court's instructions to the effect that "the defendant was not an insurer" and was chargeable only with the exercise of "ordinary care, that is, such care as ought to be expected of a reasonably prudent person under the * * * circumstances," which is the only degree of care recognized "in law."
What is "ordinary care" cannot be governed by arbitrary rules, [4] but varies according to the exigencies which require attention and vigilance. ( Johnson v. Boston Montana etc. Co., 16 Mont. 164, 49 P. 298.) It must be proportionate to the danger; what would be ordinary care in a case presenting little danger, would be far "below this in case of great danger." ( Liston v. Reynolds, 69 Mont. 480, 223 P. 507, 509.)
One operating amusement devices for hire owes a duty to his [5] patrons measured by the standard of ordinary care proportionate to the risk to be apprehended and guarded against, and, of course, if such an operator invites children who have not reached an age where they are able to understand, appreciate, and avoid danger incident to a device to which they are thus invited, ordinary care should include the taking of precautions to protect them, which would not be necessary in the case of adults or older children. ( Swan v. Riverside Bathing Beach Co., (1931) 132 Kan. 61, 294 P. 902; Linthicum v. Truitt, 2 Boyce (Del.), 338, 80 A. 245; Longacre v. Yonkers R. Co., 236 N.Y. 119, 28 A.L.R. 1030, 140 N.E. 215; Henroid v. Gregson Hot Springs Co., 52 Mont. 447, 158 P. 824; Phillips v. Butte Jockey Club, 46 Mont. 338, 42 L.R.A. (n.s.) 1076, 127 P. 1011.)
These rules measure the duty of the defendant, the question as to what steps or precautions should be taken in the performance of that duty being one of negligence rather than duty.
In the absence of a law requiring specific acts, the court [6] cannot say, as a matter of law, that the duty imposed includes such specific acts ( Stewart v. Mynatt, 135 Ga. 637, 70 S.E. 325; Pontecorvo v. Clark, 95 Cal.App. 162, 272 P. 591), but that question must be left to the jury in determining whether there has been a breach of the duty imposed. (24 Cal. Jur. 565; Johnstone v. Panama Pacific Exposition Co., 187 Cal. 323, 202 P. 34; Harris v. Crawley, 170 Mich. 381, 136 N.W. 356; Hayes v. Eldora Amusement Co., 51 Pa. Super. 426; Sciachitano v. City of Beaumont, (Tex.Civ.App.) 266 S.W. 558.)
The complaint sufficiently charges the duty which was imposed upon the defendant; but did the defendant breach that duty?
Actionable negligence, the converse of reasonable vigilance, [7] is the failure to do what a reasonably prudent person would ordinarily do under the circumstances, or the doing of what such a person would not have done under the circumstances. ( Zanos v. Great Northern Ry. Co., 60 Mont. 17, 198 P. 138; Flaherty v. Butte Elec. Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 P. 416.)
The reasonable inference from the evidence is that the operator of the merry-go-round, in this case considered, accepted as patrons any and all persons who had the price of a ride — a nickel — and made no exception as to children of an age rendering them incapable of apprehending danger or caring for themselves. It did not require parents to accompany such children but, impliedly at least, represented to such parents that an attendant would ride the moving platform and look after such children. With this inference drawn from the testimony, the jury was called upon to determine what steps the operator should have taken, in the exercise of ordinary care under the circumstances and the known danger encountered, to render the amusement reasonably safe from such danger.
The test of actionable negligence is not what might have prevented a particular accident, but what reasonably prudent men would have done in the discharge of their duties under the circumstances as they existed at the time of the accident. If the operation of an amusement device is such that those who patronize it may reasonably be expected to receive injury unless they pursue a certain line of conduct with reference to it, it is the duty of the operator to formulate and enforce rules for the conduct of such persons. ( Davenport v. Oceanic Amusement Co., 132 App. Div. 368, 116 N.Y. Supp. 609.)
Fundamentally, the operation of a merry-go-round does not [8] differ in this regard from the conduct of a bathing beach; in each the operator should reasonably apprehend danger to patrons not fully competent to handle themselves in the environment, if such persons are permitted to become patrons. It is held that one who maintains a public bathing resort, to which the public is invited to bathe for an admission charge, is bound, in the exercise of ordinary care, to keep someone on duty to supervise the bathers and to immediately rescue any one of them in apparent danger. ( Larkin v. Saltair Beach Co., 30 Utah, 86, 116 Am. St. Rep. 818, 8 Ann. Cas. 977, 3 L.R.A. (n.s.) 982, 83 P. 686.)
Manifestly, a platform moving in a circle, and thus developing centrifugal force, must be known to any reasonably prudent man to be a dangerous place for very young and immature children, and if the operator of such a device, for the sake of the nickels he may collect, does not prohibit such children from riding thereon, ordinary care should dictate that he take such steps as are necessary for their protection, such as promulgating and enforcing rules compelling a parent or other responsible person to ride with them and care for them; provide straps for fastening them on, or provide an attendant to ride the moving platform who will be vigilant to discover any child not maintaining its equilibrium and "to immediately rescue any apparently in danger." ( Larkin Case, above.)
The evidence is sufficient to warrant the finding, implied [9, 10] from the verdict, that the defendant breached its duty toward the child by negligently withdrawing the attendant who had theretofore ridden on the moving platform for the protection of the children. However, the child was not injured; the mother was, in an attempt to rescue the child from a position of apparent danger. That the danger was apparent and appeared imminent is shown by the testimony of the man operating the machinery, to the effect that as soon as he saw the child in a position of danger he threw out the clutch to stop the platform from revolving and made a "dive" for the child.
The defendant concedes the humanitarian rule that a person injured in the rescue, or attempted rescue, of another who has been placed in a situation of peril by the negligence of a third person, may recover from the negligent person as though the negligence constituted a breach of duty toward him. In such a case "the presumption that the rescuer is impelled by the dictates of humanity is of itself sufficient to send the case to the jury, unless it is apparent that when he encountered the danger he ought as a prudent man to have known that he could not escape injury or death." ( Bracey v. Northwestern Imp. Co., 41 Mont. 338, 137 Am. St. Rep. 738, 109 P. 706; Da Rin v. Casualty Co., 41 Mont. 175, 137 Am. St. Rep. 709, 27 L.R.A. (n.s.) 1164, 108 P. 649.)
It is first contended that plaintiff's act in attempting to board the platform was uncalled for and reckless. It is true plaintiff did not call for help, but she looked for the man in charge while the platform made three revolutions, the child meanwhile being slowly forced to the outer edge by centrifugal force; no help from the operator appearing, she was justified in acting as in an emergency; nor does the picture of a healthy and athletically inclined young woman, running a few steps and then seizing an upright rod to swing herself on to a platform raised but four inches above that on which she was running and traveling from five to ten miles an hour, spell recklessness.
The question of contributory negligence in placing the child on the merry-go-round alone, presents a closer question.
If the emergency is the culmination of a train of events set [11] in motion by the negligent act of the party attempting the rescue, there can be no recovery. ( Miller v. Union R. Co., 191 N.Y. 77, 83 N.E. 583; Alabama Power Co. v. Conine, 213 Ala. 228, 104 So. 535; Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 29 Am. St. Rep. 553, 13 L.R.A. 190, 28 N.E. 172.)
Parents of children so young as to be unable to care for [12] themselves owe a duty to exercise reasonable care and prudence for their safety, and what is reasonable care under the circumstances depends upon the age and intelligence of the child and the danger of the situation known, or which should have been known, by the exercise of the required care. The unexplained presence of a child non sui juris in a known place of danger is prima facie, but not conclusive, evidence of contributory negligence on the part of the parents. ( Harrington v. Butte, A. P. Ry. Co., 37 Mont. 169, 16 L.R.A. (n.s.) 395, 95 P. 8; Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178.)
Plaintiff was familiar with the operation of the [13] merry-go-round; she knew that, under certain circumstances, its operation was dangerous to the child, but she did not think it was in any danger if the operations were carried on as theretofore: with a man riding the platform to assist the child in case it attempted to dismount or lost its equilibrium; she relied upon such a man being in charge.
From the foregoing description of the merry-go-round, it would seem that it was specially constructed for the carriage of young children and was made as safe as such a device for amusement could be made. Plaintiff had, from past experience, reasonable cause to believe that an attendant, in addition to the operator of the machinery, would be on the platform, "reasonable cause" being "such grounds of belief as would warrant a cautious man in the conclusion that it is true." ( Brown v. Yielding, 206 Ala. 504, 90 So. 499, 501.) Under her testimony, believed by the jury, she pointed the children out to the ticket man, after she left the platform, and gave him tickets for them, but not for herself, so that the attendant knew that she was entrusting them to the care of the management. Having been in a position to forbid her to leave her child alone on the hobby-horse and having failed to do so, the defendant must be deemed to have bidden her to leave the child in the care of the attendant (sec. 8748, Rev. Codes 1921), thus raising an implied promise to look after the child.
Under all the circumstances, we cannot say that the evidence did not warrant the jury in finding that plaintiff was not guilty of contributory negligence in this respect.
Finally it is contended that the verdict of $3,000 is [14] excessive. A new trial may be granted for "excessive damages, appearing to have been given under the influence of passion or prejudice" (sec. 9397, Rev. Codes 1921), and, in order to avoid a new trial, courts sometimes give the prevailing party the option of remitting the excess ( Chicago Title Trust Co. v. O'Marr, 25 Mont. 242, 64 P. 506), but the difficulty in determining whether or not damages in personal injury cases are excessive, arises from the fact that there is no rule by which the question can be determined and the citation of authorities is of little assistance. No two cases are alike; verdicts as large or larger have been sustained where the injury was no greater than was here shown, and judgments as small or smaller have been reduced or scaled. The rule in this jurisdiction is declared to be that "so long as we have a system which confides to juries the duty to determine the issues involved in this character of cases and to fix the amount of compensation to be paid, unless the result of their deliberation is such as to shock the conscience and understanding, it must be accepted as conclusive." ( White v. Chicago etc. Ry. Co., 49 Mont. 419, 143 P. 561, 564; Kirk v. Montana Transfer Co., 56 Mont. 292, 184 P. 987; Staff v. Montana Petroleum Co., 88 Mont. 145, 291 P. 1042.)
The plaintiff suffered severe pain from the time of the [15] injuries up to and including the time of the trial; she was confined to her bed for four weeks and thereafter walked on crutches for three or four weeks; she has not since been able to swim, dance, drive a car, or do many of the other things she did before; she has intermittent "knife-like pains" through her back and left leg; she is not able to teach summer school, as she did formerly. A physician who examined her about two weeks prior to the trial testified that she suffered from sciatica of the left side and bursitis of both knees. Sciatica is a nervous condition; bursitis is not; it is an inflamed condition of the surfaces under the kneecap, causes creaking of the joints and is apt to be permanent. The doctor could not say that the sciatica resulted from the accident, and the testimony regarding it was withdrawn from the jury.
On this evidence an award of $3,000 does not so shock the conscience and understanding as to require a new trial or an arbitrary substitution of the judgment of this court for that of the jury.
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur.