Opinion
36435.
DECIDED DECEMBER 4, 1956.
Tort; injuries to invitee. Before Judge Tye. Fulton Superior Court. July 31, 1956.
Thomas B. Branch, Jr., Harold Sheats, for plaintiff in error.
Cohen, Roberts Kohler, contra.
One operating a merry-go-round for hire is bound to exercise ordinary care before the merry-go-round is put into operation in order to determine whether or not the merry-go-round itself, or the grounds in close proximity thereto, are free of bottles, and further to determine that no one is allowed to board the merry-go-round and carry bottles thereon.
DECIDED DECEMBER 4, 1956.
Mrs. Betty Land, hereinafter called the plaintiff, entered suit against the Amusement Vending Company, hereinafter called the defendant, to recover for injuries which she received. The petition as amended alleges:
"1. The defendant herein, Amusement Vending Company, has an office and agent in said State and county. 2. Defendant has injured and damaged petitioner in the sum of $10,000 by reason of the facts set forth hereinafter. 3. Defendant owns and operates a carousel or merry-go-round in Lakewood Park, Atlanta, Georgia. 4. Members of the general public are invited by the defendant to ride upon said merry-go-round. 5. A charge is made by defendant of those who ride upon said merry-go-round. 6. On Friday night, September 29, 1950, at approximately 7:30 p. m., petitioner entered upon the premises occupied by defendant for the purpose of purchasing tickets to ride upon said merry-go-round. 7. Petitioner had climbed the steps which are approximately in the middle of the north side of the building in which said carousel or merry-go-round is housed and was approaching the ticket office of said carousel or merry-go-round which is located in the northeastern corner of said building and was about half-way between said steps and said ticket office when she was struck by a piece of a broken bottle which had been left on the floor of said carousel or merry-go-round and was thrown by said carousel or merry-go-round when it developed sufficient speed in its operation to cause said piece of broken bottle to be thrown therefrom by the centrifugal force generated through the operation of said carousel or merry-go-round. 7-a. Defendant was under the duty to provide a safe place for those persons, including petitioner, who accepted defendant's invitation and entered upon defendant's premises for the purpose of paying defendant for the privilege of riding upon, or as in petitioner's instance supervising the riding of small children riding upon, defendant's carousel. 7-b. Defendant knew that it would be dangerous to allow any one having a bottle such as those used to contain soft drinks get upon said carousel or merry-go-round because it knew that should said bottle be dropped and broken and dropped to the floor of said carousel or merry-go-round it would be thrown therefrom by the centrifugal force created by the revolving of said carousel or merry-go-round when put into operation. 7-c. In the exercise of ordinary care defendant should not allow any one having a bottle in his possession to get upon or ride upon its carousel or merry-go-round. 7-d. In the exercise of ordinary care the defendant should have inspected said carousel or merry-go-round and the riders thereon each time before putting it into operation to determine whether or not there was on said carousel or merry-go-round, or in the possession of any of the riders thereon, any bottles or broken pieces of bottles because it knew that if there was any broken bottles or broken glass on said carousel or merry-go-round that the same would be thrown therefrom and likely would strike one of the persons who had accepted defendant's invitation and had entered upon defendant's premises for the purpose of paying the purchase price and riding upon defendant's carousel or merry-go-round. Likewise the defendant knew that if it allowed any one riding upon said merry-go-round or carousel to ride while having a soft drink bottle in his possession that there was danger that such bottle might be dropped and broken and thrown from said carousel or merry-go-round through the operation of centrifugal force generated when said carousel or merry-go-round was put into operation and hit someone of defendant's invitees and in the exercise of ordinary care defendant should have made inspections each time before putting said carousel or merry-go-round into operation to determine whether or not any of the riders on said carousel had any bottle or bottles in their possession. 7-e. Defendant did not make any inspection of said carousel or merry-go-round each time before putting it into operation to determine whether or not there was any broken glass or broken bottle thereon. Nor did defendant make any inspection of the riders on said carousel or merry-go-round to determine whether or not any of such riders had in their possession any soft drink bottles which might be dropped and broken and thrown from said carousel or merry-go-round by centrifugal force when said carousel or merry-go-round was put into operation. 7-f. If defendant had made a careful inspection of said carousel or merry-go-round each time before putting it into operation it would have discovered the piece of broken bottle that was thrown against petitioner's foot and in the exercise of ordinary care would have removed the same before putting said carousel or merry-go-round into operation. 8. Said broken bottle cut petitioner's right ankle so that it was necessary for two stitches to be taken in petitioner's ankle in order to close said cut. 9. Petitioner's wound was excruciatingly painful and she still suffers pain. 10. Petitioner's injuries were directly and proximately caused by the negligence of the defendant. 11. Defendant was negligent in allowing any one to carry any bottle upon the premises occupied by said merry-go-round and to which the general public was invited, when it knew of the dangerous situation that would be created if any such bottle should become broken and a piece of such broken bottle get on said carousel or merry-go-round from which it would be thrown by the centrifugal force generated when said carousel or merry-go-round was put into operation. 12. Defendant was negligent in not inspecting said merry-go-round and discovering the presence of said bottle before starting the operation of said merry-go-round when it knew that the operation of said machine would tend to throw off any article left thereon. 13. Defendant was negligent in not furnishing petitioner a safe place when it invited her to enter defendant's premises to ride upon said merry-go-round."
The defendant filed a general demurrer, which the trial court sustained. The plaintiff assigns error here on this judgment of the court.
The case nearest in point to the case at bar (which is from another jurisdiction), is: Williams v. Mineral City Park Association, 128 Iowa 32 ( 102 N.W. 782, 5 Ann. Cas. 924). We deem it essential to quote from that case as follows: "The defendant association is a corporation under whose management and direction a place or field for public amusement has been established at or near the city of Ft. Dodge, Iowa. Within this inclosure is erected a so-called `grand stand' or amphitheatre containing benches or seats for the accommodation of the people attending the races and other exhibitions there given. Over the central portion of this amphitheatre, at a height of some twenty-five feet, is a platform intended to be occupied by a band of music. This platform was inclosed by a rail two by four inches in size extending around the four sides about three and one-half feet from the floor. On three sides, near the rail, were benches for the accommodation of the musicians. Except as described, the platform was inclosed by no barrier or netting to guard against the fall of any substance or article from the platform upon the audience seated below. An entrance fee was collected from visitors for admission to the grounds, and an additional fee for a seat in the amphitheatre. Upon the day in question certain races had been provided by the defendant, to which, by the usual methods of advertising, the public was invited. The plaintiff attended the entertainment, paid the usual charges for admission to the ground and to the amphitheatre, and was given a seat below the band platform. While sitting in the place thus provided, and without any apparent fault on her part, a quart bottle was dropped or fell from the platform upon the head of the plaintiff, resulting, it is alleged, in her serious injury. The plaintiff's petition sets out these facts, and charges the defendant with negligence (1) in constructing the platform without netting or other barrier to guard against such injuries to persons seated below; and (2) in giving the plaintiff a seat under said platform, when, in the exercise of due care, it should have known and provided against the danger to which she was thus exposed.
"There was evidence tending to show that on one or more occasions during the day, and prior to the accident, bottles of some kind had been seen upon the platform floor, and it is the theory of the appellant that the bottle by which she was hurt rolled or was in some manner crowded or pushed from said floor. No one testifies to seeing anything of this kind, but it is sought to be inferred from the facts above stated. On the other hand, a witness for the defendant testifies to having seen a member of the band pick up from the floor two quart bottles, and in attempting to hold them on the rail with one hand, while he reached for a third with the other hand, a bottle slipped from his grasp, and fell over the rail. The witness, who was also a member of the band, immediately went below, and learned that plaintiff was injured, evidently by the bottle which he had seen fall." In that case it was held that, where it appeared that the plaintiff, while sitting in the grand stand, was struck by a bottle dropped from the band platform overhead, it was for the jury to determine whether it was negligence for the defendant to fail to provide such inclosure around the platform as would have prevented the accident from happening, and that, where it appeared that the defendant permitted dealers to carry bottled liquors to persons on the band platform, it was for the jury to determine whether the defendant was negligent in not keeping the floor of the platform clear of bottles. See also 22 A.L.R. 610.
Counsel for the defendant call our attention to Cuthbert v. Schofield, 35 Ga. App. 443 ( 133 S.E. 303); Great A. P. Tea Co. v. Cox, 51 Ga. App. 880 ( 181 S.E. 788); McCrory Stores Corp. v. Ahern, 65 Ga. App. 334 ( 15 S.E.2d 797); Brown v. S. H. Kress Co., 66 Ga. App. 242 ( 17 S.E.2d 758) and United Theatre Enterprises v. Carpenter, 68 Ga. App. 438 ( 23 S.E.2d 189). It is our opinion that the cases called to our attention by counsel for the defendant are not controlling. We take this view because none of those cases showed such a dangerous instrumentality in operation as does the one which was in operation in the instant case at the time the injury was inflicted. One operating a merry-go-round for hire is bound to see that no bottles are carried on the merry-go-round or dropped in the immediate vicinity thereof before the machine is put into operation. It is our opinion that the exercise of ordinary care in operating the machine and in keeping the premises safe from such bottles is required. By the exercise of ordinary care in making such inspections such injuries likely would not occur.
The court erred in sustaining the demurrer and thus dismissing the petition.
Judgment reversed. Townsend and Carlisle, JJ., concur.