Knowles v. Roberts-at-the-Beach Co.

Plaintiff, Leitha R. Knowles, a woman of over 30 was injured when, dining as a patron in defendants’ restaurant, she took part in a hobbyhorse race organized by defendants for the amusement of their patrons. The jury found for defendants and plaintiff appeals. She assigns two errors: (1) As a matter of law she had assumed no risk and it was therefore error to submit the issue of assumption of risk to the jury. (2) It was error to exclude evidence of violation by defendants of section 1049 of the Police Code of San Francisco which requires persons operating any “. . . swing, slide or mechanical amusement contrivance for the purpose of conveying human beings” to

Appellant contends that as a matter of law there can be no question of assumption of risk because the testimony of plaintiff is uncontradicted that plaintiff had never seen a hobbyhorse before, did not know the danger involved, and upon inquiry from an attendant was told there was no danger. The evidence does not support the argument. Testimony was given that before the race started an attendant announced through loud-speakers: “Some of the horses are wild and some tame, take your own chances.” Respondents point out that normally assumption of risk is a question of fact for the jury. Calame v. Stevens, 110 Cal.App.2d 45 [ 242 P.2d 109 ] ; DeGraf v. Anglo California Nat. Bank, 14 Cal.2d 87 , 100 [ 92 P.2d 899 ]. Plaintiff knew that she was entering a race with hobbyhorses on a dance floor in which there was some danger of injury; there was evidence that the master of ceremonies announced that some of the horses were wild and some tame, which circumstance could have put a woman of her age on notice of possible danger. She saw the horse before her and went 6 to 8 feet on it before falling, during which time she had opportunity to become aware of the way the hobbyhorse functioned. There is then sufficient doubt to submit the matter to the jury.

Moreover plaintiff herself offered an instruction on assumption of risk, which instruction as amended was given by the court. She is then precluded from arguing on appeal that the matter should not have gone to the jury. Ray v. Kennedy, 24 Cal.App.2d 583 [ 76 P.2d 147 ].

Appellant also urges that by taking part in the race which was a floor show to amuse the patrons for the benefit of defendants she became their unpaid employee and that section 2801(a), Labor Code, excludes the defense of assumption of risk in a personal injury action of an employee. Appellant cites as only authority Edwards v. Hollywood Canteen, 27 Cal.2d 802 [ 167 P.2d 729 ], a personal injury action by a radio actress, rendering gratuitous services as hostess at the canteen, who was thrown to the floor by a service man who jitterbugged with her against her will. The case does not hold that she was an employee. It holds that with respect to workmen’s compensation she was not an employee under section 3351, Labor Code, which requires an appointment or contract of hire, express or implied, and does not

The court sustained an objection to introduction in evidence as to a city safety ordinance on the ground that there was no evidence that violation of said ordinance could be a proximate cause of plaintiff’s injury. The court expressly gave plaintiff opportunity to introduce evidence as to the causal relation, but no further evidence, except that no license was taken out and that the ordinance was in force, was offered.

Whether the violation of an ordinance constitutes a proximately contributing cause of the injury is ordinarily a question of fact and becomes a question of law only when it appears that but one inference can reasonably be drawn from the evidence. Farole v. Eichman, 39 Cal.2d 822 , 824 [ 249 P.2d 261 ] ; Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581 , 590 [ 177 P.2d 279 ]. Appellant relies on Andreen v. Escondido Citrus Union, 93 Cal.App. 182 , 187 [ 269 P. 556 ], in which it was held that evidence that a fumigator had not taken out a license as required by statute was admissible as evidence of negligence in an action for fumigation damage to an orchard; and Cragg v. Los Angeles Trust Co., 154 Cal. 663 , 667 [ 98 P. 1063 , 16 Ann.Cas. 1061], which held that the employment of an unlicensed elevator operator in violation of a municipal ordinance requiring examination and licensing was, except for excusing evidence, negligence per se. She further reasons that the ordinance is a

Summarizing, the horse race was conducted for the amusement of the patrons; a bottle of champagne was the prize for the winner; the contestants were all warned that there was some danger of falling off. The situation is the same as a bucking bronco contest in a public rodeo. The contestants are all aware of some danger, but they assume the risk for the prize offered. The assumption of the risk herein is the controlling factor. The absence of an inspection was not a contributing cause in any sense of the word. The element of some danger was the attraction which moved the customers to participate in the contest. If the jury had found for the plaintiff on the sole ground of the absence of a license to operate, it would have been a clear miscarriage of justice.

Judgment affirmed.

Booling, J., concurred.

A petition for a rehearing was denied January 31, 1953.