Szasz v. Joyland Co.

PINCH, P. J.

Plaintiff recovered judgment against the defendant for damages in the sum of twenty thousand dollars. The defendant has appealed from the judgment. The facts, which are undisputed, are accurately stated in respondent’s brief as follows:

[261]

“The defendant owns and operates an amusement park in the City of Sacramento known as Joyland Park. There are numerous concessions leased by defendant to various concessionaires in and about the park, among -which is a shooting gallery operated by Mrs. Bari Pappas. On the evening of the 24th day of August, 1924, plaintiff, in company with his father, mother, brother and sister, pursuant to an advertisement in a newspaper, went to Joyland Park for the purpose of seeing a show. Upon arriving at the park the father, after paying the necessary admission for all, plaintiff included, drove his automobile into the grounds of said park. After visiting certain of the attractions about the park, all in the party went to see the show. After the show they proceeded toward the dancing pavilion. While en route to the dancing pavilion, plaintiff requested leave of his father to watch a man shooting at the shooting gallery, which adjoined the dancing pavilion, and leave being granted, plaintiff, with his brother Charles, went over to the shooting gallery and stood in front thereof, and while looking in the direction of the targets, which were situated at the rear end of same, watched the man who was also standing in front of same shooting at said targets.

“While plaintiff and his brother were standing four or five feet to the rear of the man who was shooting at the targets, and to his right, the man shot once, and then shot again. Immediately after the second shot was fired, plaintiff put his hand to his eye and cried out that something had entered it. His father rushed to his side and thereupon made an examination of the eye, but being unable to see what had entered it, because of the dim light, took plaintiff into the dance pavilion and later to the hospital, where treatment was given him pursuant to the doctor’s orders. It was determined subsequently by x-ray that some foreign substance had entered the eyeball. Thereupon the doctor made several attempts to remove this foreign substance from the eyeball, but found it impossible to do so, which therefore necessitated the removal of same to save the other eye. Several months thereafter the eyeball was removed. It was then found that the foreign substance was a small piece of lead similar to the lead used in the bullets at the shooting gallery. The gun used was a special shoot