Attebury v. Jones

Stone, J. Action to recover damages for personal injuries suffered by a 4-year-old girl. A verdict for plaintiff was set aside and judgment ordered for defendant. This appeal by plaintiff raises the single question as to whether there was any proof of negligence on the part of defendant. The accident occurred at Longfellow Gardens, a public amusement place operated by defendant in Minneapolis. The attractions by way of menagerie and otherwise are especially tempting to children, who visit the place in large numbers. An admission fee is charged. At the time in question, a portion of an open balcony or sun-room was used to some extent as a waiting-room. Therein were chairs for the use of patrons desiring to pause for a brief rest. On one side was a shelf about 3 feet from the floor, upon which was placed *296 a slot machine or automatic vending apparatus of a kind frequently seen in such places. The shelf had a slight tilt to the rear so that the machine leaned backward a trifle, and against a large post' to which the shelf was fastened. The slot machine was a box-like affair about a foot wide and 16 inches high. It weighed 25 pounds. Its front was so equipped with colored signs and display reading matter that a jury finding that it might be expected to attract the attention of a child would not be open to just criticism. The testimony as to how the little girl was injured is conflicting. That for plaintiff was to the effect that while the two elder members of her party were sitting nearby and otherwise engaged, she went to the shelf with a coin in an attempt to operate the machine; that she was barely able to reach the lower front edge by standing on tip-toe; that she did so reach the' machine and in some way pulled it off the shelf forward and down onto herself, resulting in the injury complained of. The testimony for the defense was that the little girl was not attempting to operate the machine, but had climbed up on a rocking chair standing near the shelf, started to fall, and in doing so grabbed the machine in an effort to save herself apparently, and so pulled it down. A majority of the court is of the opinion that, whichever view of the case is taken, there was a question as to defendant’s negligence which should have gone to the jury. He was under a duty to exercise due care for the protection of his patrons, old or young. The machine in question, the result demonstrated, was within reach of a child whose curiosity may have been excited by it. That being the case, there is room for the opinion, on the facts, that the machine should have been so fastened as to protect a child on pleasure bent who, through the curiosity characteristic of tender years, might be led into such an investigation or attempted use of the machine as could lead to accident otherwise. It is a situation where reasonable minds, addressing judicial attention to the problem, may arrive at different conclusions with respect to defendant’s conduct — some deeming it due care and others negligence. For that reason the order appealed from is reversed and the case, when remanded, will *297 stand for disposition upon defendant’s motion for a new trial which was not acted upon because of the granting of the motion for judgment. So ordered.