Smith v. Delaware River Amusement Co.

The opinion of the court was delivered by Minturn, J. The declaration alleges that on July 27th, 1907, the plaintiff purchased a ticket of admission to a grandstand, in an amusement park maintained by defendant, at Gloucester, in this state; and that while leaving the stand with other people, she, without notice of the existence of any danger, walked into a hole in the flooring and severely injured herself. The grounds of demurrer raise the question as to the sufficiency of the declaration from three standpoints: [462] First. That it does not state a cause of action. ■ Second. That it does not show that plaintiff used reasonable care; and, Third. That it appears therefrom that plaintiff contributed to her own injury. Under the adjudged cases in this state, the facts alleged in the declaration sufficiently disclose a legal cause of action; and the rule must now be considered settled, that the owner or occupier of premises who, by invitation, express or implied, induces persons to enter upon his premises, must exercise reasonable care to render the premises reasonably safe for such use. Phillips v. Library Company, 26 Vroom 307; Eckman v. Atlantic Lodge, 39 Id. 10; Land v. Fitzgerald, Id. 28. We cannot say from an inspection of this declaration that it shows the plaintiff to have contributed to her own injury; nor will the law--presume that she was negligent in that respect. Missouri Pacific Railroad Co. v. Foreman;, 73 Tex. 311. The requirement in some jurisdictions, that the declaration shall allege that due care was exercised by the plaintiff; or, in other words, that contributory negligence shall be negatived by an allegation of due care (Cooley Torts 673) has never been the rule in this state; but, on the contrary, it has been determined, that a declaration is good, if it contains all that is necessary for the plaintiff to prove under a plea of the general issue, in order to entitle him to recover. Beardsley v. Southmayd, 2 Gr. 534. The plaintiff, therefore, is entitled to judgment on the demurrer.