Tennessee State Fair Ass'n v. Hartman

Mr. Justice "Williams

delivered the opinion of the Court.

This is a companion case of Hartman v. Tennessee State Fair Association, 183 S. W., 733 , ante, p. 149, the facts being the same in each. The appeal is that of Davis, the operator of the “Ocean Wave” amusement device, there described, who was held liable in the court below. The court of civil appeals has affirmed the judg-. ment, and we are asked to review that action on writ of certiorari.

The matter of merit in the appeal depends on the solution of a single question — whether the proper degree of care was imposed on D'avis by the court in the charge to the jury.

*161 The trial judge gave instructions as follows:

“The law demands a degree of care higher than ordinary care from a carrier of passengers for hire. It demands of such carriers the highest degree of care— that care which the most prudent man would he expected to exercise under circumstances similar to those shown in evidence, in the design, construction, maintenance, inspection, and repair of his vehicles and its approaches and exits.”

It is complained that it was error to burden Davis with the degree of care exacted of a common carrier of passengers. There seems to be little authority on the status, in this respect, of the operators of merry-go-rounds, scenic railways, and amusements of like type.

The supreme court of Illinois, in the case of O’Callaghan v. Dellwood Park Co., 242 Ill., 336 , 89 N. E., 1005 , 26 L. R. A. (N. S.), 1054, 134 Am. St. Rep., 331 , 17 Ann. Cas., 407, dealing with a scenic railway operated in an amusement park, said in this connection:

• “The precise question now under discussion has not been decided by this court, and our attention has not been called to any case where the degree of care and responsibility resting upon those managing a railway of this kind has been considered. The nearest in point, perhaps, is Knottnerus v. North Park Street R. R. Co., 93 Mich., 348 , 53 N. W., 529 , 17 L. R. A., 726. That was as to the operation of a roller coaster, and the street railway company, while it owned the amusement park *162 ■where the coaster was being operated, did not own or operate the device itself. . . . We think, not only by fair analogy bnt on reason and sound public policy, appellant should be held to the same degree of responsibility in the management of the railway in question as a common carrier.”

The supreme court of Alabama ruled in like manner in respect of a scenic railway. Best Park, etc., Co. v. Rollins, (Ala.), 68 South., 417 . And see Chesapeake Beach R. Co. v. Brez, 39 App. D. C., 58.

In Massachusetts it is held that the business of a proprietor of a sight-seeing automobile so far approximates that of a public carrier as that he owes to his patrons the duty of exercising the highest degree of care consistent with the proper transaction of the business. Hinds v. Steere, 209 Mass., 442 , 95 N. E., 844 , 35 L. R. A. (N. S.), 658.

This court, followed by the Illinois court (Hartford Deposit Co. v. Sollitt, 172 Ill., 222 , 50 N. E., 178 , 64 Am. St. Rep., 35 ), has held that operators of elevators for the service of persons are charged with the high degree of care imposed on common carriers (Southern Building, etc., Asso. v. Lawson, 97 Tenn., 367 , 37 S. W., 86 , 56 Am. St. Rep., 804 ), and in accord is the weight of authority (9 R. C. L., 1249).

There is nothing to the contrary in the principles enunciated in Lumsden v. Thompson Scenic R. Co., 130 App. Div., 209 , 114 N. Y. Supp., 421 ; and so far as Linthicum v. Truitt, 2 Boyce (Del.), 338, 80 Atl., 245 , *163 involving a merry-go-round, is subject to the adverse construction, it goes against the current of authority.

We are of opinion that the court of civil appeals did not improperly hold that the rule of care devolved by law on a common carrier was applicable in the present case. Of course the fact that the person injured was led to ride on the Ocean Wave by motives of curiosity or pleasure cannot operate to distinguish the case, any more than it did the decisions in those cases involving scenic railways and sight-seeing automobiles. All persons were invited to make use of the device who would pay the fare. There were unusual risks which the operator was bound to anticipate and protect against in the construction and operation of the mechanism of carriage, since the patrons had no opportunity to do so.

We are not to be understood as saying that the operator was a technical common carrier, or that all of the rules governing such a carrier are applicable to him. We are treating only of the measure of care to be observed by him.

The responsibility of Davis in that regard being equivalent to that of a common carrier, it follows that the falling of the carriage contrivance was, in connection with the attendant circumstances, evidence tend-inging to show that it was of faulty construction or out of repair; and the case properly went to the jury, over the defendant’s motion for peremptory instructions. Writ denied.