Barrett v. Lake Ontario Beach Improvement Co.

Hiscock, J.: This action was brought to recover damages for the death of plaintiff’s intestate who was killed by falling from the platform of a toboggan slide, and which is claimed to have been negligently constructed, in that it did not have a sufficient railing or guard around it. The premises where the accident occurred consisted of a portion of the beach at Charlotte, in Monroe county, a bath house and appurtenances and the toboggan slide in question. The accident occurred during the afternoon of August 26, 1900. The premises, including the structure in question, were owned by the defendant, but at and for a considerable period before the date of the accident were leased to and in the possession of one Briggs. The intestate fell from the platform of the toboggan slide, which was elevated about twenty-five and a half feet above the beach. The construction of this slide and platform, so far as material here, was as follows: — 603 — The platform from which the slide led into the lake was supported by a framework made of sills and posts, strengthened by crossbraces. It was eleven feet and two inches square, made of planks about ten inches wide, planed on the upper surface and laid about seven-eighths of an inch apart. It was protected by a railing four feet in height, which consisted of posts made of four by four scantlings, set at the corners of the platform and half way between the corners, and upon the top of which and midway between the top and the floor were rails made of two by four scantlings. The spaces between the middle rail and the floor of the platform, and between it and the top rail, were each twenty-one inches. It will thus be seen that this railing about the platform reached to the breast of a man of average height, and that the opening between the floor of the platform and the middle of the lower rail would not quite reach to his knee. The slide for the toboggan led from this platform by a reasonably steep decline -into the waters of the lake, and consisted of a trough-like structure in the bottom of which the toboggan ran. On the west side of this trough was a smooth surface. which was used as a walk for returning from the water to the platform. Access to the platform was also furnished by a stairway leading onto the south side of the platform. The slide was elevated somewhat above the north edge of the platform, and the portion of it forming the trough projected' over it towards the center. This projecting portion was used to place the toboggan upon before mounting and from it the' start was made down to the water. At the west side of this projection, and at the north edge of-the platform where the walk from the water terminated, a step was placed about ten inches high and ten inches wide, reaching from the edge of the portion of the slide used for mounting to the west railing, a distance of about two and a half feet. The main structure was rebuilt in the spring of 1896, and at least so far as the platform and railing were concerned was used without material change during the seasons elapsing down to the time of the accident. There was evidence showing that in consequence of people coming out of the water the walk from the water to the platform would become wet, and that at least one person had slipped upon it. The platform itself was at times damp when many people came out of the water upon it. There was no evidence, however, that any per — 604 — son had ever slipped upon it or that any accident had ever happened upon or from it but the one in question. There was no evidence that the platform was wet or slippery upon the day in question. The proof, upon the other hand, was that the day was very hot and the sun shining with such brightness and heat as would rapidly dry up any moisture. There is no definite or very satisfactory evidence as to the exact manner in which the fall of the intestate, which finally took him over the edge of the platform to the ground and caused his death, commenced. He had been down the slide into the water and had returned with his toboggan to the platform. He had mounted upon the step for the purpose of placing the toboggan on the slide when, in some manner, he slipped or lost his balance and fell. Only two witnesses saw him in the first portion of his fall. The witness Brazil says: “ He was ready to go down and he had a sled in his hand and he set it on the toboggan, and the stool they step on shook with him and he slid and went through between the rail and the floor.” Hpon' cross-examination, however, he materially qualifies this evidence, saying: “ I do not know exactly what he was doing when he went off. I saw him put his sled down, but I do not know whether he was' to jump on the sled' or not. * * * I did not see his feet before I .saw him go through under the rail. * * * I do not know just what he was doing just before he came through the rail. * * * I could not tell from where I was whether he slipped or whether it was something else. I saw him go and that is all I can tell.” The witness Shepard says : “ I was looking right at him and the first thing I knew he fell. I wouldn’t say whether he went over or under, he went so quick. * * * When I saw him on the platform he was about in the center of it, the center of the west side. * * * He was just standing with his back to the railing, two or three on each side of him.” Three fundamental questions were involved and considered upon the trial below, as likewise they have been argued here. . These questions relate to the safety and sufficiency of the construction of the toboggan slide, the assumption of any risks incidental to its construction by the intestate, and the liability of' the defendant for the negligence, if any, in the construction, it being a lessor and not — 605 — in possession of the property at the time of the accident. In view of the conclusions which we have reached upon the first two questions adverse to the claims of the plaintiff herein, we shall not deem it necessary to consider the last one. It may be admitted that the question whether there was evidence to sustain the jury’s verdict of negligence in the construction of the platform and the railing thereon is not entirely free from doubt. It, of course, would have been a simple and inexpensive matter to have put one or even more additional railings around the platform and to have thus made impossible an accident such as happened. It also would be very eásy to say, in the light of the unfortunate occurrence which did happen, that it would have been well to have done this. This, however, is not the method by which we are to determine this question. W-e are rather to say whether before this accident happened there was anything which should have led the person responsible for the structure, in the exercise of ordinary care and caution and thoughtfulness, to apprehend that there was a probability of its happening. As was said in Crafter v. Metropolitan Ry. Co. (L. R. [1 C. P.] 300), and quoted with approval in Larkin v. O'Neill (119 N. Y. 221, 225), “ The line must be drawn in these cases between suggestions of possible precautions, and evidence of actual negligence such as ought reasonably and properly to be left to a jury. It is difficult in some cases to determine where the line is to be drawn.” Under all of the circumstances of this case we think that it stands upon that side of the line marked by lack of evidence upon which a jury might predicate and find negligence. In considering this question it is proper to keep in mind, as affording some light for its decision, the character and purpose of the structure. It was there simply and solely for purposes of amusement. No one was compelled by necessity or even business purposes to visit it. Moreover, the amusement, for the enjoyment of which it was a necessary means and instrument, was dependent for its attractiveness upon a certain amount of exhilarating excitement. The main feature of the platform which made possible intestate’s death, its elevation from the ground, was absolutely necessary and essential to secure the attractive sport of running rapidly over the slide down into the water. In this respect the structure was somewhat different in — 606 — the character of the invitation, which it held out to the public from a hotel where one could go seeking simply rest and security, or from a theatre which one would attend without any thought of risk or excitement incidental to the nature of the building. First impressions about the safety and sufficiency of the railing around this platform might differ. Some person, especially if unable to entirely free his mind from remembrance of the fact, that somebody had slipped through the railing, might reason that a space of twenty-one inches between railings was liable to offer an opportunity for such an accident. The space of twenty-one inches* however, between the middle railing and the platform on one side, and the top railing upon the other, was comparatively small. The lower space would not come to a man’s knee. It is not claimed that, a person standing in any ordinary attitude was liable to go over or through it. It was only in case of an unnatural attitude, caused by slipping or falling* that such an accident could happen, and we do not believe that a combination of circumstances which would result in a person being passed through this railing without catching it or being stopped by it was reasonably to be apprehended. Passing by original reasoning upon the subject, however, we have what seems to us a 'more reliable and accurate test by which to' measure the sufficiency of this structure, and that is the history and result of its actual use. It had been used for the same purposes which it was called to serve, at the time of the accident, for nearly five years. During that time thousands of people had used the platform as intestate was using it when he met with his'death. Sometimes upon a single day the number of its patrons would reach from 100 to 150.- During that time not only had no one fallen over or through the railing, but, so far as the evidence discloses, no one, by slipping or otherwise, had been placed in such a position of peril as . to require the use of the railing to keep him from falling over. There was nothing about the use of the platform calculated to so hurry or distract the attention of a person using it as to lead him into risk or peril. As We have stated, it would only be some unusual condition which would throw a person upon or against this railing for protection. This was true in the case of intestate’s accident, and the evidence does not clearly indicate just what that condition was, or whether — 607 — it was such as to free intestate from any imputation of negligence and allow plaintiff to claim some dereliction upon the part of defendant or its lessee. According to the evidence of one witness, we have the intestate standing at the mouth of the toboggan slide apparently getting ready to go down it and the next instant going through the railing. We must largely rely upon conjecture if we say that the commencement of this fall was due to his slipping upon boards which were rendered slippery by dampness incident to the use of the toboggan as claimed by plaintiff. So far as the evidence discloses, to our minds it would be quite as easy to conclude that he stumbled or lost his balance in placing his sled, and as the result of such an unusual and unforeseen mishap was thrown into the fall which resulted in his death; that the accident was the" result of a mishap which was not reasonably to be apprehended in building the platform and railing. In Larkin v. O’Neill (119 N. Y. 221) plaintiff fell upon the stairway in defendant’s store. The steps were used by a great number of people and it was claimed that they were negligently constructed in that there were .no footholds, brass plates or rubber pads thereon to keep one from slipping. The court, referring to the fact that these steps had been used daily in safety by a great number of people who passed up and down, say, with reference to plaintiff’s accident: “ There was nothing in the manner in which the stairs were constructed, used or kept, from which such a result could reasonably be anticipated. It is quite probable that the accident occurred from slipping or from a misstep by the plaintiff.” In Hart v. Grennell (122 N. Y. 371), where it was held that defendant was not liable because plaintiff had tripped and fallen over a truck handle in the latter’s store, it was said that the rule of liability in such a case “ has reference to such dangers as might reasonably be anticipated by a prudent and careful man. * * * The question is could the mischief have been reasonably foreseen.” In Burke v. Witherbee (98 N. Y. 562) the accident was caused by the slipping of the hook from the bail of a car which was used in defendant’s mine. The plaintiff claimed that there should have been a bolt through the hook, and there was no question but that such an appliance could have been easily used and would have prevented the accident. The car had been used, however, for a long time — 608 — safely and without any such accident. In speaking of this test by actual experience, the court say: “ What more could any reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper one ? What greater or different tests could it have been subjected to before a mine owner could use it without the imputation of negligence? ” In Dougan v. Champlain, etc., Co. (56 N. Y. 1) the deceased was attempting to secure his hat, which had blown of, and in so doing he slipped and went through one of the openings in the rail of defendant’s boat and was drowned. There was proof that the boat had run in the sanie condition for a long timé and that the same situation existed upon other boats and that no accident had occurred before. The court said: “ Had there been any proof tending to show that any such danger would be apprehended by aueasonable, prudent person, the evidence should have been-submitted to the jury.” But it held that in the light of the experiences had with the boat there was no such evidence. In Loftus v. Union Ferry Co. of Brooklyn (84 N. Y. 455) the plaintiff’s intestate, a child six years old, while passing from the ferry boat to the dock, fell through an opening twenty-two inches high between the bottom and second rail of the float or bridge over which passengers passed in going upon or leaving the boat. . The proof was that this bridge had been in service five or six years, was similar to bridges of other ferries and that, no similar accident had previously happened. In holding that there was no proof of negligence upon the part of the defendant, the court say: “ The rule does not impose upon the defendant the duty of so providing for the safety of passengers that they shall encounter no possible danger and meet with no casualty in the" use of the appliances -provided by it. It was possible for the defendant so to have'constructed the guard that such an accident as this could not have happened; and this, so far as appears, could have been done without unreasonable expense or trouble. If the defendant ought to have foreseen that such an accident might happen, or if such an accident could reasonably have been anticipated, the omission to provide against it would, be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years, certifying to the sufficiency of the guard. That it was possible for a child — 609 — or even a man to get through the opening was apparent enough. But that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty.” (See, also, Lafflin v. Buffalo, etc., R. R. Co., 106 N. Y. 136; Craighead v. Brooklyn City R. R. Co., 123 id. 391.) Within the rules laid down by, and the reasoning of, these and other cases, and in view of the fact that it had safely and securely served all of the purposes for which it was designed for years, we think it was improper to permit a jury to say that this platform and railing was not constructed with reasonable care, and that it was not sufficient to guard against any contingencies which could be reasonably apprehended. We think this case can clearly be distinguished from that of Donnelly v. City of Rochester (166 N. Y. 316), especially relied upon by plaintiff. There the railing complained,of was two and a half feet high, and was . the only guard to an excavation which extended into the busy portion of one of Rochester’s main streets. The person injured met with his accident, not while voluntarily seeking out a place of amusement, but while necessarily or at least properly upon the street. The railing did not comply with an ordinance adopted by the city of Rochester, and thus at the' outset a presumption of negligence arose. Then again, in answer to the claim of the defendant that the railing had stood in the same condition for years, with a great number of people passing by, it was shown that other accidents had happened at nearly the same point. If, however, we should assume that this railing not only might have been but should have been more safely constructed, still its defects were open and visible to the most casual glance. The intestate was fifteen years old, and as the counsel for plaintiff states in his brief, “ was a promising boy, bright and active. He already had done some work for which he was well paid, the proceeds of which he gave to his family.” He could foresee and just as accurately determine the risks incident to the use of this structure as the owner or lessee thereof. If, as claimed by plaintiff, he slipped upon the wet boards, we think' that such a contingency was just as much open to and within the limits of his intelligence and experience as within — 610 — that of the manager or proprietor of the slide. A bright boy of the age in question would have quite as much knowledge upon the question of sliding or slipping as an adult. So, also, he would appreciate as well as the latter the possibility of falling or slipping between the spaces of the railing. The evidence does not disclose whether he had been upon the slide before the day in. question. But upon that day at least he had been there for two hours before he met with his accident, and thus had had the most ample opportunity to observe what were perfectly patent conditions. We think, under such circumstances, that plaintiff could not hold defendant responsible for the accident even if otherwise liable. Some of the cases to which we have already referred, like that of Larkin v. O’Neill and Hart v. Orennell, in holding the defendant not liable, especially refer to the fact that the person injured “ was not exposed to any unreasonable or concealed danger; ’’ that the conditions complained of were obvious to every one as to risks, and were well known to the plaintiff, and that 'the defendant did not expose any one “ to hidden or unforeseen dangers.” We think also that, within the rule laid down in Koehler v. Syracuse, etc., Co. (12 App. Div. 50); Hickey v. Taaffe (105 N. Y. 26) and Buckley v. Gutta Percha & R. M. Co. (113 id. 540), it is proper to hold that the intestate, although an infant, was to be charged with knowledge of the construction^ which was open to> his view, and of the risks which were incident thereto,, and to the use of the platform. As stated before, the conclusions reached upon these questions lead us to the belief that the order appealed from should be reversed, without considering the question of defendant’s liability as a lessor. Adams, P. J., and McLennan, J., concurred; Williams and Spring, JJ., dissented.