Thomas v. Goldston

In this action of tort for personal injuries allegedly due to the negligence of the defendant in causing her to fall from a sidewalk or platform in front of a store which was part of premises leased to the defendant, the plaintiff excepted to directed verdicts for the defendant. The platform was five inches above the level of the abutting parking area, and forty feet of its length was used for children’s amusement devices, including a miniature merry-go-round or turntable. The plaintiff attributed her injury to the fact that, having placed her grandchild on the back of one of the two wooden horses mounted on the merry-go-round, she deposited a dime in the coin box on the center pole, whereupon the machine immediately started up and she was struck by the hind hooves of one of the horses, causing her to fall from the platform. She later ascertained that the hind hooves extended about ten inches beyond the turntable platform. There was no evidence that the device which had been on the premises for some years was defective structurally or otherwise. Photographs are before us. The purpose and construction were open and obvious to persons of ordinary intelligence. In these circumstances there was no duty to warn. Alden v. Norwood Arena, Inc. 332 Mass. 267, 271. Scully v. Joseph Connolly Ice Cream Sales Corp. 336 Mass. 392, 394. Exceptions overruled.