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GRIEST v. PLAYTOWN (03/24/64)

March 24, 1964

GRIEST
v.
PLAYTOWN, INC., APPELLANT.



Appeal, No. 76, Jan. T., 1964, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1961, No. 2364, in case of Elizabeth Griest v. Playtown, Inc., also known as Playtown Park. Judgment affirmed; reargument refused April 22, 1964.

COUNSEL

George J. McConchie, with him Cramp and D'Iorio, for appellant.

Angelo A. Di Pasqua, with him Caine & Di Pasqua, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 414 Pa. Page 59]

OPINION BY MR. JUSTICE MUSMANNO

Mrs. Elizabeth Griest, 50 years of age, entered the Playtown Park in Chester County with her married daughter and son-in-law with their children, and a friend Mrs. Nancy Ellerbrake, with her two small children, Deborah, age 4, and Susan, age 2. She boarded the merry-go-round with Mrs. Ellerbrake, her son-in-law with his boy Michael 5 1/2, and the two children Deborah and Susan Ellerbrake for the specific purpose of assisting these two latter tots in mounting the horses they were to ride, as the horses, in simulated gallop, made their swing around on the carousel. She approached a row of three chargers and placed Deborah on the middle mount. Mrs. Ellerbrake lifted Susan into the saddle of the first mount surveying the equestrian scene. Her son-in-law placed Michael on the horse moving on the inside track. After Mrs. Griest had strapped Deborah onto her steed, she moved to the rear to step off the platform before the horses, to the accompaniment of rousing music, began their circular charge. She was about to step from the platform, having actually extended her right foot when, without any warning by bell, whistle, or otherwise, the merry-go-round started away on its peripheral journey and she

[ 414 Pa. Page 60]

    was thrown from the platform onto the floor beneath. Her participation in the enjoyment of the day ended in a hospital, to which she was taken by ambulance.

She sued the owner of the Playtown Park and recovered a verdict of $20,000. The defendant, Playtown, Inc., seeks a new trial, alleging trial errors.

In cross-examining Mrs. Griest and Mrs. Ellerbrake, defendant's counsel asked about safety straps which these women testified were attached to the horses. The manager of the amusement park testified that there were no such safety straps. In his charge to the jury, the trial judge, in speaking of the hazards in an amusement park, said: "The question of whether such precautions, such as safety straps, ringing of bells, sounding of warnings are necessary, and whether the lack of them constitutes negligence, considering the character of the device, its use and all the other circumstances, is a question of fact for you, the jury."

The appellant complains that this statement constituted error because the judge mentioned safety straps which were not involved in the accident. The cited remark, however, was merely a ray of explanation thrown onto the screen of enlightenment to illumine and clarify the whole general subject so that the jury would be thoroughly at home in its discussions. After his general explanatory instructions, the judge specifically pointed out the specific issue of negligence in controversy by stating that it was the contention of the plaintiff that as "she was in the process of alighting from the merry-go-round, the defendant's operator caused the machinery to be set in motion without any warning, as a result of which the plaintiff, Mrs. Griest, was thrown to the ground ... she charges that this defendant was ...


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