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AMON v. SHEMAKA (11/09/65)

decided: November 9, 1965.

AMON
v.
SHEMAKA, APPELLANT



Appeals from judgments of Court of Common Pleas of Allegheny County, October T., 1961, No. 608, and Jan. T., 1962, No. 3882, in cases of Howard Amon, Jr. v. William Shemaka, individually and trading as Pine Valley Rola-Land; Same v. Anna Maria Shemaka.

COUNSEL

Allen D. McCrady, with him McCrady & Nicklas, for appellants.

Stephen J. Harris, with him Litman, Litman and Harris, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Musmanno dissents.

Author: Bell

[ 419 Pa. Page 315]

These are appeals by the defendants in a negligence suit from the Judgments of the lower Court which, after a jury verdict for plaintiff, dismissed defendants' motions for a new trial.

On the evening of May 10, 1960, plaintiff went to defendants' roller skating rink accompanied by his wife and two little children. He skated around the rink several times with his seven-year old daughter and with his young son. ". . . the pattern was just the general flow of the traffic." In the inner perimeter were advanced skaters who were spinning and figure skating. Sometimes the skaters skated singly, sometimes two, three or four abreast. On the side of the rink were benches where the prospective skaters put on their skates and parents waited for their children.

Plaintiff had skated ever since he was a youth. He testified that as he was skating a two-step with his

[ 419 Pa. Page 316]

    seven-year-old daughter in the normal flow of traffic which was counterclockwise, he noticed a small boy named Smith who was skating toward the bench to rejoin his mother. "When the boy was about 25 feet away, he seemed to be coming at me in a groping sort of way, as if he was struggling to maintain balance, apparently he wasn't able to stand on his skates. Well, I was on the inside with my daughter on the outside and I just had time enough to try to jump and avoid running into the boy. I did it more by instinct than anything and as I jumped my skate made contact with him. And the next thing I knew I was on the floor. . . ."

As plaintiff skated round and round the rink he naturally noticed "that most of the skaters were of an age between five and say twelve years of age . . . Well, he [the boy who appeared to plaintiff to be between five and seven] was coming almost directly at me; he was coming on a slant, angle, of course I was coming in this direction, here, as I say, he appeared to be stumbling and pitching forward as if trying to maintain balance. This motion is quite common with all small children trying to go on skates and it was apparent that he was going to fall right in front of me . . . When I made contact with him, I couldn't say that he was actually already on the floor, but he was in the process of going down." Plaintiff fell and fractured his ankle in three places.

This was plaintiff's case.

Defendants' witnesses testified that plaintiff had been skating backwards several times during the evening, which he admitted, and had been warned that his conduct might result in injury to himself and others; and more importantly, that at the time he fell he was skating backwards ...


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