Hicks v. Fontaine Ferry Enterprises, Inc.

247 S.W.2d 493, 1952 Ky. LEXIS 702
CourtCourt of Appeals of Kentucky
DecidedFebruary 8, 1952
StatusPublished
Cited by2 cases

This text of 247 S.W.2d 493 (Hicks v. Fontaine Ferry Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. Fontaine Ferry Enterprises, Inc., 247 S.W.2d 493, 1952 Ky. LEXIS 702 (Ky. Ct. App. 1952).

Opinion

CAMMACK, Chief Justice.

The appellants, Edward Hicks and Ruby Braden, were injured while riding in a Loop-O-Plane at an amusement park operated by Fontaine Ferry Enterprises, Incorporated. They filed separate actions for damages, but the cases were consolidated for trial. At the conclusion of all the evidence a verdict was directed in favor of the appellee. Reversal is urged on the ground that there was sufficient evidence to warrant the submission of the case to the jury. -

The appellants contend that the doctrine of res ipsa loquitur applies, since the Loop-O-Plane was under the exclusive control of the appellee. This doctrine involves a rule of evidence which, when applicable for the plaintiff, requires that the burden of going forward with the evidence be shifted to the defendant in order that he have an opportunity to explain away the cause of the injury. Fannin v. Lewis, Ky., 243 S.W.2d 60.

Under the circumstances, a description of the mechanism of the Loop-O-Plane is necessary. The Plane consists of a vertical center tower which is constructed of metal and is hollow. A horizontal tower of similar construction is mounted on top of the vertical tower and welded to it.- The [494]*494horizontal tower extends a distance of 14 feet on each side of the vertical tower. A large sprocket wheel is attached to each end of the horizontal tower and a metal shaft extends through each sprocket wheel. Metal rods are attached to the sprockets by-means of bolts. The rods (referred to as vertical rods) are hollow and 14 feet in length. The carriages, or seats, one on each side of the vertical tower, are attached to the ends of the vertical rods. The operator’s control box is to the left of the Plane. From this box the operator controls the motor and the brake. Electrical wires run from the control box through an underground conduit up through the vertical tower to the motor and the lights. The motor is attached at the top of the vertical tower by means of metal brackets. A mechanical brake is located below the motor and it is controlled by the operator by means of a wire extending from the control box to the brake. The differential is located approximately two feet below the motor. A small sprocket wheel is attached to each end of the differential. A large sprocket chain, which is self-lubricating, encircles the small wheel and also the large one which is attached to the horizontal tower. The motor furnishes power to the differential, which in turn causes the large sprocket wheel to rotate, thereby causing the carriages to move in a circle. The carriages, moving like an ordinary swing, make a complete revolution after attaining a height of some 18 feet. They are constructed of metal and are six feet long and 36 inches wide. Wire screens cover the top of the carriages as safety devices. Each carriage has two seats which are back to back and each seat accommodates two persons. The seats are made of wood and are covered with cotton padding one-half inch thick. The padding is covered with a leatherette material. There is a wooden footrest in the bottom of each carriage. There are no electrical wires or heating devices attached to or connected with the carriages.

The appellants purchased tickets to ride on the Plane about 8:00 p. m. They entered the carriage next to the control box and occupied the same seat. They said that about 30 seconds after the carriage began to move the seat started getting hot. Both yelled to the operator to stop the Plane, but he did not hear them. Both parties said they saw smoke coming from the motor just as the carriage reached the top of its swing. Immediately thereafter flames broke out on the seat directly beneath Hicks. They yelled again to the operator and he stopped the Plane. Hicks’ burning clothes were torn from his body. He was burned seriously and Ruby Braden also sustained painful injuries.

It follows from what has been said that the doctrine of res ipsa loquitur does not apply in this case. No electrical or mechanical defects were shown. Neither the exterior nor the interior wooden part of the carriage was burned; only the leatherette covering and cotton padding on the side where Hicks was sitting were burned. After the appellants entered it the agents of the appellee were in no position to observe or control the actions of the occupants. It is true that the operator controlled the movement of the Plane, but there is nothing about its movement which would cause a fire. There was no breakdown or any defect shown in any of the mechanism. In fact, there was nothing about the carriage which would cause it to catch fire. It is quite true that the accident was a very unusual one, but there is nothing to show that it would not occur if the appellee’s agents were exercising care. It is our view that the appellants and the appellee were placed on equal footing, insofar as the burden of ascertaining the cause of the fire is concerned.

In Chadwick v. Louisville & N. R. Co., 213 Ky. 831, 281 S.W. 1018, 45 A.L.R. 1537, a passenger, who was injured when a window fell on her arm, sought to apply the doctrine of res ipsa loquitur on the ground that the window was under the exclusive control of the Railway Company. It was held that the doctrine did not apply because the window was not under the exclusive control of the Railway Company, since passengers were frequently opening and closing the windows.

It follows that, if the appellants were entitled to have their case submitted to [495]*495the jury, it was incumbent upon them to show that the appellee was negligent and that this negligence was the proximate cause of their injuries. Ruby Braden said she rode on the Plane around 6:00 p. m. While she and some friends were waiting to ride, they heard a mechanic ask an operator of the Plane if it was operating properly. The operator replied, “It is working all right, but there is hot oil leaking from it.” The mechanic said that this was not serious and to go ahead and operate the Plane. Ruby Braden said also that, after the fire which burned her and Hicks, there was oil on her slacks and shoes. Hicks’ trousers were offered in evidence and there was an oil spot near his back pocket. Both Hicks and Ruby Braden testified that their clothes were free from oil stains when they entered the carriage. It is their position that, since there was oil on their clothes when they left the carriage after the fire, there must have been oil on the seat. Both parties said they saw smoke coming from the motor just before the fire started. They described the smoke as about as much as one would see when a person is smoking a cigarette. But, even if it be assumed that the agents of the ap-pellee were negligent in failing to discover a defect in the motor, it was still incumbent upon the appellants to show some causal connection between the defective or smoking motor and the fire in the carriage.

A contention of the appellants is that, ■since smoke was coming from the motor, it is reasonable to infer that it was on fire, and also Jhat it is reasonable to presume that the fire was of such intensity as to cause the oil in the motor to ignite. The hot oil then flowed through the horizontal tower (a distance of 14 feet) and ■dropped a distance of 14 feet and ignited the oil inside the carriage. We have noted that the horizontal tower was welded to the vertical tower. It would be virtually impossible for hot oil to follow this course, in the absence of a mechanical defect in the towers, which was not shown.

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247 S.W.2d 493, 1952 Ky. LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-fontaine-ferry-enterprises-inc-kyctapp-1952.