Muskin v. Gerun

KNIGHT, J.

Plaintiff, a professional acrobatic dancer, while performing her act at a café owned and operated by defendants, became impaled on a large splinter on the floor; and she brought this action to recover damages for the injuries so received, which she alleged were sustained as a result of defendants’ negligence. Defendants denied the allegations of negligence, and as special defense pleaded contributory negligence. A jury returned a verdict in defendants’ favor; and from the judgment so entered, plaintiff appeals.

The principal facts may be stated as follows: Plaintiff was a member of a professional aerobatic dancing team consisting of herself and two other young women. For some time they had been putting on their performance in cafés and theatres in various cities; and plaintiff had been taking part in this same act for about six years in many of the larger cities in the United States and in London. The defendants owned and operated the Bal Tabarin café in San Francisco, and hired plaintiff and her partners as independent contractors, at a salary of $400 a week, to give two floor shows each night at Bal Tabarin. Before the first floor show was put on and during the intermission between the two shows the portion of the floor on which the team was required to perform was used for dancing by the patrons of the café. Their engagement at Bal Tabarin started on May 24, 1939, and continued up to the night of the accident, on June 9, 1939. They wore thin, ankle length dresses; and as part of the act plaintiff ran across the floor, and when about a yard from the band stand took a leap and slid across the floor on her stomach. On the night of the accident, in performing this usual routine, she took the leap and started to slide, but “stopped dead.” She did not

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know what had happened, but she could not get up and was in great pain. She called the orchestra leader over; and it was discovered that she was impaled to the floor by a large splinter, which remained attached to the floor at its base and impaled her by entering her leg just below the groin and emerging below the knee. Some of the employees of the café tried to release her from the floor by using a chisel to pry up the boards, but were unable to remove her; and she remained pinned to the floor some twenty or thirty minutes before she was 'finally taken off by an ambulance crew, and conveyed to the emergency hospital, where the splinter was removed. It was about seventeen inches long, two and a half inches wide and an inch thick at the base, and tapered off to a point. It had entered her leg about three inches below the groin, and emerged about four inches below the upper border of the knee cap. She was transferred to the St. Francis Hospital under the care of the personal physician of one of the defendants, where she remained for about sis days. She was then taken to an apartment, and later returned to Los Angeles. At the time of trial she had done some work, including some dancing in a chorus in Los Angeles, but was unable to take part again in the acrobatic dancing performance she had been putting on when injured. The trial took place about nine months after the accident, and at that time there were several scars on her leg where the splinter entered and came out, and another scar where a hypodermic needle had been used to draw off fluid; she complained of numbness around the knee; and it was also shown that at the time of trial she still had a small splinter under the skin, which the medical testimony showed could be removed by a simple operation.