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• Title: Brown v. Columbia Amusement Co.
• Author : Supreme Court of Montana
• Release Date : January 31, 1931
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 74 KB

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Personal Injuries ? Injuries Suffered by Mother in Attempt to Rescue Child in Imminent Danger ? Complaint ? Sufficiency ? Merry-go-round ? Duty of Operator ? Parent and Child ? Actionable Negligence ? Contributory Negligence ? Verdict ? When not Excessive. Personal Injuries ? Complaint ? Sufficiency ? Liberal Construction ? Appeal ? Disregard of Immaterial Defects. 1. The complaint in a personal injury action, attacked on the ground of insufficiency, must be liberally construed with a view to substantial - Page 175 justice between the parties, and the supreme court on appeal must disregard any error or defect therein which does not affect their substantial rights. Same ? Actionable Negligence ? Complaint ? Contents. 2. Actionable negligence arises only from the breach of a legal duty, and to state a cause of action in a personal injury action the complaint must show, by a statement of facts ? not legal conclusions ? the duty resting on defendant, its breach, the resulting damages and that such breach was a proximate cause of the injury. Same ? Plaintiff Injured in Attempt to Protect Child from Falling Off Merry-go-round ? Complaint ? Sufficiency ? Contributory Negligence. 3. Complaint in a personal injury action, showing that plaintiff, mother of a child of tender years riding on a rapidly moving merry-go-round, believing that defendant would have an attendant on the platform of the machine to look after the safety of children, as it was its duty which it negligently failed to perform, seeing the child in imminent danger of falling off, and using all due care and caution for her own safety, attempted to board the moving merry-go-round in view of the existing emergency and in an effort to protect the child from falling, and in such attempt was injured, etc., held sufficient and not open to the objection that it disclosed contributory negligence on plaintiffs part. Same ? Complaint ? Insufficiency ? When Pleading Deemed Amended. 3a. Where a complaint is attacked on appeal as insufficient but evidence is submitted without objection which aids the pleading, it will be deemed amended to supply the defect. Same ? What Constitutes "Ordinary Care." 4. What is ordinary care varies according to the exigencies which require attention and vigilance ? it must be proportionate to the danger; hence what would be ordinary care in a case presenting little danger, may be far from what is required in the way of ordinary care in a case of great danger. Same ? Duty of Operator of Merry-go-round Toward Children ? Extent of Ordinary Care for Their Protection. 5. Under the law of the case as declared by the trial courts instructions not objected to, that an operator of a merry-go-round is not an insurer but chargeable only with the exercise of ordinary care where he permits or invites unattended children of tender age, unable to appreciate the danger incident to an amusement device of that nature, the term "ordinary care" includes the taking of precautions to protect them, such as would not be necessary in the case of adults or older children. Same ? Breach of Duty of Operator of Merry-go-round to Exercise Ordinary Care to Protect Children from Injury ? Jury Question. 6. In the absence of statute declaring what specific precautionary measures an operator of a merry-go-round shall take to prevent injury to children of irresponsible age riding thereon, the question whether he breached his duty to use ordinary care in failing to take proper measures to guard such children from injury is one for the jurys determination. Same ? "Actionable Negligence" ? Definition. 7. Actionable negligence ? the converse of reasonable vigilance ? is the failure to do what a reasonably prudent person would ordinarily do under the circumstances, or the doing of what such a person would not have done under them.

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