Potts v. Crafts

MARKS, J.

On August 24, 1933, Donald Potts was a minor of the age of nine years. He was injured on that day while driving a miniature automobile over an oval board track both of which were the properties of defendant. This action was brought to recover for the damages suffered. The judgment awarded damages in the total sum of $500.

Defendant was operating a place of amusement in the city of Fresno on August 24, 1933. It was designated as “Crafts 20 Big Shows” and various forms of amusements were offered to the public upon the payment of a required charge. Donald Potts drove the miniature automobile around its oval track twice without accident, but on the third trip its left front wheel fell into an opening three or four inches wide between the boards of the runway and the injury to the child resulted.

The proprietor of a public place of amusement owes to his patrons the duty of using ordinary or reasonable care to see that they are not injured.

(Johnstone

v.

Panama Pacific I. E. Co.,

187 Cal. 323 [202 Pac. 34] ;

Sharpless

v.

Pantages,

178 Cal. 122 [172 Pac. 384].)

The trial court found that “said board track was so negligently and carelessly constructed, erected and maintained by the defendant to the extent that a portion of one of the transverse boards forming said .track was broken off and missing on the 24th day of August, 1933, in such a manner that a crack or crevice was left in said track running in a transverse manner across said track and of a width of several inches”.

This finding is assailed by defendant as not being supported by and as contrary to the evidence. The minor and one of his boy companions testified that the opening was there and that the automobile wheel dropped into it. This was denied by the defendant and his witnesses. Thus a conflict was created which was resolved in favor of plaintiff by the trial court. Where there is evidence supporting a finding we cannot set aside a judgment simply because the testimony of a number- of witnesses would prove the existence of facts contrary to those found by the trial court.

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