Opinion
No. 42873.
February 3, 1964.
1. Negligence — amusement park proprietor — not guilty of negligence with respect to water skier.
Amusement park operator was not guilty of negligence with respect to water skier, who had fallen into water and was injured when boat which had towed her accelerated rapidly and tow rope cut and severed her finger, either by failing to provide reasonably safe place for her to engage in skiing, by failing to use reasonable care in providing and enforcing reasonable rules and regulations or in failing to use reasonable care in supervising skiing activities, where proprietor required, in compliance with statute, that boats towing skiers have observers in addition to operators. Chap. 165, Sec. 21(1), Laws 1960.
2. Negligence — amusement park proprietor — care required of, for safety of patrons.
Operator of a place for public amusement is bound to exercise reasonable care for safety and protection of its patrons, but such does not require him to assume control over actual operation of each boat towing skiers, or to instruct or inquire into qualifications of observers riding in ski boats. Chap. 165, Sec. 21(1), Laws 1960.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, Judge.
Dudley W. Conner, Hattiesburg, for appellant.
I. The Court erred in overruling the defendant's motion to strike that portion of the plaintiff's reply or answer to the affirmative defenses of the defendant, wherein the plaintiff was permitted, after the commencement of the trial, to file a denial of the defendant's affirmative defenses and assert therein for the first time affirmative matter, and in forcing the defendant to continue with the trial without an opportunity to investigate and prepare a defense for the affirmative matter set up in the plaintiff's reply. Calvert Fire Insurance Co. v. Swain, 217 Miss. 773, 65 So.2d 253.
II. The Court erred in overruling the defendant's motion for, and defendant's request for, a peremptory instruction. Chap. 165, Secs. 21(1), 23(4)(5), Laws 1960.
III. The proof in this record shows conclusively that the plaintiff's injuries resulted solely and alone from her own negligence, and in such case there could be no liability upon Hennington for her injuries. Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Cothern v. Brewer, 234 Miss. 676, 107 So.2d 361; E.I. Du Pont De Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Fant v. Commercial Carriers, Inc., 210 Miss. 474, 49 So.2d 887; Hill v. Columbus Ice Cream Creamery Co., 230 Miss. 634, 93 So.2d 634; Illinois Central R. Co. v. Crawford, 244 Miss. 300, 143 So.2d 427; Kelley v. Sportsmen's Speedway, 224 Miss. 632, 80 So.2d 785; McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34; Orr v. Columbus G.R. Co., 210 Miss. 63, 48 So.2d 630; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Thompson v. Mississippi Central R. Co., 175 Miss. 547, 166 So. 353; 38 Am. Jur., Negligence, Secs. 72, 166 pp. 702, 731, 837; 45 C.J. 1043.
IV. Appellee was a trespasser, and the appellant owed her no higher duty than not to injure her wilfully or wantonly. Campbell v. Willard, supra; Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364; Milauskis v. Terminal R. Assn., 286 Ill. 547, 122 N.E. 78; Roberts v. Mississippi Power Light Co., 193 Miss. 627, 10 So.2d 542; 65 C.J.S., Negligence, Secs. 23b, 24a pp. 437, 438; Cooley (4th ed.), Torts, Secs. 251, 440.
V. The Court erred in granting the instructions, and each of them, requested by the plaintiff.
VI. The verdict of the jury is contrary to the law and overwhelming weight of the evidence, and is based on testimony not sufficient in law to justify or permit a recovery.
VII. The Court erred in overruling the defendant's motion for a judgment non obstante veredicto and/or a new trial.
Zachary Weldy, Hattiesburg; John D. Kervin, Collins, for appellees.
I. The question of whether the appellee was an invitee or a trespasser at the time she lost two fingers from her left hand was properly submitted to the jury under the proper instructions and was correctly answered in the verdict of the jury. Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Kelley v. Sportsmen's Speedway, 224 Miss. 632, 80 So.2d 785.
II. The question of whether or not the appellant was negligent in failing to supervise water skiing on his lake, one of the varied activities of his amusement center, for which he collected a fee from the general public, invited to use said facilities, and whether or not such negligence proximately caused or contributed to the permanent injuries of the appellee, were correctly resolved by the triers of fact under proper instructions of the law by the trial court. Meridian Amusement Concession Co. v. Roberson, 188 Miss. 136, 193 So. 335; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; 52 Am. Jur., Theaters, Shows, Exhibitions, Sec. 47 p. 291.
III. The court below committed no reversible error in overruling the motions of the defendants below to strike. Hart Properties, Inc. v. Slack (Fla.), 145 So.2d 285.
Carol Curtis, plaintiff-appellee, was injured while water skiing on Lake Shady owned and operated by Henry Hennington, defendant-appellant. The jury awarded Carol Curtis $5,000. Judgment was entered accordingly and defendant appealed. We hold that defendant was not guilty of any negligence proximitely contributing to plaintiff's injuries.
Since the jury found for plaintiff, we state the facts in the light most favorable to her. Defendant owned and operated an amusement park. He had a schedule of charges for swimming, go-cart racing, operating boats and skiing on the 400-acre lake. The boat dock and other facilities used by the boat operators and skiers was on the opposite side of the lake from the swimming area. There was a concession stand and a place where skiers could change clothes. On the Sunday afternoon when plaintiff was injured there was only one employee in charge of the concession stand and boating activities on that side of the lake. The only rules defendant had with reference to the operation of motor boats towing skiers were that boats must circle the lake clockwise, and there must be a person in the boat in addition to the operator to act as observer. Defendant did not provide a patrol boat, nor did he give those engaged in skiing any instructions as to the duties of an observer.
On the day plaintiff was injured she was in a party of eight young people ranging in age from 15, plaintiff's age, to 17, the age of Herbert Beaumont who furnished the boat and skiing equipment. Plaintiff had been skiing for several years prior to the time she was injured. When her turn came to ski, Ronnie Bayliss operated the boat powered by a 75 HP outboard motor, and Jonee McElhaney rode in the boat with Bayliss. Plaintiff and Herbert Beaumont skied, each being towed by a nylon rope. Both wore ski belts. As plaintiff crossed a wave she lost one of her skies and continued for some distance on one ski and then fell into the water. Herbert Beaumont immediately turned loose his tow rope and sank into the water about fifteen feet from plaintiff.
Neither Ronnie Bayliss nor Jonee McElhaney were looking toward the skiers when plaintiff fell into the water, but they learned that she had fallen after the boat had traveled a short distance. Bayliss turned the boat around and ran it between plaintiff and Herbert Beaumont, pulling the two tow ropes. After the boat had passed between plaintiff and Beaumont, the latter told Bayliss to go get the ski plaintiff lost when she hit the wave some distance back. Bayliss caused the boat to accelerate rapidly and neither he nor Jonee McElhaney were looking at plaintiff. As the boat moved away, one of the tow ropes rubbed plaintiff's neck and she attempted to lift the rope from her neck with her left hand. The rope cut and severed her ring finger and the first joint of her middle finger. Bayliss and Jonee McElhaney continued down the lake looking for the lost ski and did not know of plaintiff's injuries until later.
Defendant assigns as error the refusal of a requested peremptory instruction. We hold that this assignment is well taken.
(Hn 1) In determining whether the peremptory charge should have been given, we have carefully examined the evidence to ascertain whether there was any evidence that defendant was guilty of negligence either (1) by failing to provide a reasonably safe place for plaintiff to engage in skiing, or (2) failing to use reasonable care in providing and enforcing reasonable rules and regulations of skiing activities on the lake, or (3) in failing to use reasonable care in supervising skiing activities. The declaration and the instructions submitting the case to the jury are in vague and general terms, but, as we understand the arguments, these three propositions fairly state the main issues as specifically as they can be ascertained from the record.
There is no evidence whatever that the lake was not a reasonably safe place to ski. Plaintiff was not injured as the proximate result of any unsafe condition of the lake or the premises.
The Mississippi Boating Act of 1960, Chap. 165, Laws of 1960, provides in Sec. 21(1) that "No persons shall operate a motor boat on any waters of this state while towing any person or persons on water skis, or an aquaplane, or similar device without an observer in the boat in addition to the operator."
Assuming, without deciding, that defendant in the exercise of reasonable care was under a duty to require all boats towing persons on skis to have an observer in the boat in addition to the operator, the proof in this case shows that defendant did not breach such duty. Defendant had a rule or regulation that all boats towing persons on skis traverse the lake clockwise and have an observer therein, or at least some person in the boat in addition to the operator. The proof shows without dispute that Ronnie Bayliss was operating the boat and Jonee McElhaney was riding in the boat. No doubt Bayliss and Jonee McElhaney were careless in failing to keep a lookout for the trailing tow ropes and by driving the boat between the two skiers while pulling the tow ropes. But we are of the opinion that the operator of the lake cannot be charged with their negligence. Whether Jonee McElhaney was performing the duties an observer should perform was not a matter which defendant could reasonably control. The rules and regulations promulgated by the State Boating Safety Committee in accordance with the Mississippi Boating Act of 1960 provides that the observer in a boat towing a skier must be ten years of age or over. No other qualifications are set by the act or regulations.
Some lakes are patrolled by a patrol boat. Defendant had no patrol boat on the lake, but there is no proof that a patrol boat could control the activities of a large number of motor boats and skiers to the extent of preventing an accident of this sort. At the time of plaintiff's injury there were ten ski boats and fifty-seven skiers on the lake.
Appellee relies on the cases of Meridian Amusement Co. v. Roberson, 188 Miss. 136, 193 So. 335, and Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562, but these are not in point. Those cases involved the operation of swimming pools, small in area and which could reasonably be controlled by furnishing proper life-guards and lighting. Those cases are not in point.
(Hn 2) Of course, this Court recognizes the general rule that the operator of a place for public amusement is bound to exercise reasonable care for the safety and protection of the patrons, but reasonable care did not require him to assume control over the actual operation of each boat towing skiers, or to instruct or inquire into the qualifications of observers riding in the ski boats.
The unfortunate accident sustained by plaintiff was due solely to the negligence of members of the skiing party for which defendant was not legally responsible.
Reversed and judgment here for appellant.
Lee, C.J., and McElroy, Jones and Brady, JJ., concur.