Carlin v. Smith

It seems to me that the testimony tracing the injury to a bump on a roller in the contrivance on which the plaintiff was riding hardly rises above speculation. But passing that phase of the case, I think that while confining liability, according to the well-settled rule, to a failure to exercise reasonable care under the circumstances before the defendant, the court in effect holds him liable without requiring any such failure to be shown. We have a case in which the defendant has been held liable in heavy damages for an injury which, so far as any evidence shows, never occurred before, and has never occurred since, in thousands of tests, with the contrivance in the same condition. All the evidence on the point is to the effect that on the day of the injury to Mrs. Smith 522 people used the contrivance, some before and some after Mrs. Smith's ride, without any untoward occurrence; that during the same season 17,985 people used it, during the season before that 17,779 used it, and during the season before that 32,440 used it, all as it was on the day of the injury complained of, so far as known, and all without such complaint.

There was evidence of one lady's having sprained an ankle in landing from it. Such a proportion of injury would seem likely to result from almost any activity, under the safest conditions imaginable. It would, as I see it, rebut the contention that the operator of the contrivance should, before the injury occurred, have acted in anticipation of it, and exercised care accordingly — that is, so long as the contrivance continued in order, and I find no actual evidence that it was in any respect out of order when the plaintiff rode on it. In the majority opinion, the possibility of disorder or disrepair, is, I think left to be inferred too far from the mere fact of accident; and then a failure to exercise reasonable care in preventing the disorder or disrepair so inferred likewise left to be inferred without sufficient basis in facts testified to.

The experience of all those who rode before and after the plaintiff seems to me to negative any inference that the contrivance was out of order. The mere *Page 537 fact of accident on the premises or appliances of the defendant is not, of course, sufficient to charge the defendant with liability. Washington etc. Turnpike Co. v. Case, 80 Md. 36 , 45; Arnold v. Green, 95 Md. 217 ; Pillard v. Ches. Steam.

Co., 124 Md. 468 , 474; Callis v. United Railways, 128 Md. 406 , 411; Coughlin v. Blaul, 120 Md. 28 , 35; Carlin v. Krout, 142 Md. 140 . In the case of Godfrey v. Connecticut Co., 98 Conn. 63 , the court had to consider an injury on a contrivance which appears to have been similar to the one now under consideration, except that in that contrivance there was no canvas belt running over the rollers. "In the operation of the contrivance," said the court, "when the seat is tipped forward by pulling the lever, its occupants slide off from the seat and on to the top roller in the chute, and thence downward over the other rollers successively, with a bump between each two, until they roll over the lowest and arrive with a final bump upon the ground floor near the exit from the building." And in discussing the question of liability the court said: "More than sixty constructions of this kind are in use in amusement resorts in the