Knowles v. Roberts-At-The-Beach Co.

NOURSE, P. J.

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

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have it inspected by the Department of Public Works or a duly qualified safety inspector before a license therefor is granted.

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.