The opinion
O’CONNELL, Circuit Judge
(dissenting).
I agree with the majority of this court that the Pennsylvania incontrovertible facts rule does not bar recovery in the case sub judice. Likewise, I agree that in Pennsylvania a park owner is not an insurer of the safety of his invitees. I believe, however, that the facts as found by the jury at the trial of the instant case neither require nor warrant the conclusion that, as a matter of law, the defendant herein met the test of reasonable inspection under the circumstances. I should like to analyze the cases on which my brethren rely in reaching the result set forth in their maj ority opinion.
Vetter v. Great A. & P. Co., 1936, 322 Pa. 449 , 185 A. 613 , while containing a dictum to the effect that a grocery store is not an insurer of the safety of its invitees, nonetheless affirms a judgment entered in favor of a rubbish remover who slipped and fell down the cellar steps of the store. The Supreme Court of Pennsylvania in that case specifically held that “It was for the jury to decide whether appellant and its employees had notice of the condition of the cellar steps prior to the time of the accident.” 185 A. at page 615 . If we apply that statement to the case at bar, was it not for the jury to decide whether Dorney Park Coaster Co. had notice, or should have had notice, of the condition of the picnic table ?
Hunter v. Hotel Sylvania Co., 1943, 153 Pa.Super. 591 , 34 A.2d 816 , did deny recovery to a hotel guest who was injured when a porcelain shower bath handle cracked. It is significant to me, however, that the court stressed that “There are no circumstances from which negligence may have been inferred by the jury, and defendant was not called upon to show that it exercised due care to prevent the harm.” 34 A.2d at page 817 . Manifestly, the Hunter case must have involved a very different situation from that here presented, if the hotel was not required to show the exercise of due care; for in the case at bar plaintiff as well as defendant adduced considerable testimony concerning not only the type of inspection which the park made, but also what types of inspection could reasonably have been made which might have discovered the defect in the table. The facts of the Hunter case, as set out in the opinion, bear out my conclusion. Without untoward incident, the hotel guest had used the same shower on several previous nights. “If defendant had inspected the fixture this would not have led to the discovery of any defect that resulted in plaintiff’s injury.” 34 A. 2d at page 817 . Reduced to its elements, the Hunter case seems to -me to hold that the hotel guest could not claim recovery under the doctrine of res ipsa loquitur, a principle inapposite to the instant case, in that plaintiff here did show affirmatively, to the satisfaction of the jury, that the park had not met its duty of inspection. Furthermore, it should be noted that the Hunter court recognized the validity of the heretofore unchallenged principle, which I deem controlling in the case at bar, that “Where the thing which causes the injury is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. [Citing cases.]” 34 A.2d at page 818 .
That Bechtel v. Franklin Trust Co., 1936, 120 Pa.Super. 587 , 182 A. 800 , the falling plaster case, as well as Smith v. Hartman, 1922, 79 Pa.Super. 126 , likewise turn upon the doctrine that negligence must be affirmatively proved, is indicated by the statement in Annett v. American Stores Co., 1939, 333 Pa. 589 , 5 A.2d 97 , citing these two cases for “the principle that where the evidence is not sufficient to sustain the conclusion that the defendant placed the object, which inflicted the injury, in the position of peril, mere proof of the happening of the accident will not carry the case to the jury, or support a charge of negligence.” 5 A.2d at page 98 ; emphasis supplied. Moreover, the Bechtel case was limited still further; for the court said [ 120 Pa.Super. 587 , 187 A. 801 ], “* * * nor do the facts warrant us in holding the rule applicable to be the duty assumed by owners of public exhibitions or entertainments to which the public resort in large *439 numbers, such as a theater, circus, ball game, or park. [Citing cases.]” 1
Kline v. Kratchman, 1926, 87 Pa. Super. 463 , also involved an accident in which the injured party “offered no evidence whatever as to the condition of the bench either before or after the alleged accident * * *. The plaintiff does not seem to have made any examination of the bench, which he might have done then and there, to ascertain whether it had been improperly constructed or that defects had developed therein which required repair.” 87 Pa.Super. at page 465 .
The foregoing analysis impels the conclusion on my part that the cases on which the majority of this court bases decision, while undoubtedly correct expositions of Pennsylvania law, should have no bearing upon the ■case which we must decide. None of those cases either involve or question the higher degree of responsibility which the operator •of an amusement park must meet; none pose the situation where the injured party has gone forward affirmatively to show more than the mere happening of an accident; and none challenge even indirectly the principle that accidents themselves afford evidence of the want of due care, if they would not have happened in the ordinary course of things, had proper care been ■exercised by “those who have the management.”
I can see no reason why the principle last enunciated is not applicable in the instant ■case. The employee of. defendant whose duty it was to inspect the tables, when asked what he did in his inspections, replied, “Why, walk through [the park] and look over the tables. Whenever you see •one that doesn’t look right, examine it.” In view of the jury verdict favorable to plaintiff, can it be said as a matter of law that an inspection largely visual, which the jury obviously deemed inadequate,, and which certainly seems to have overlooked the picnic table not produced in evidence, 2 satisfies the duty of care which Pennsylvania places upon owners of amusement enterprises ?
Much closer to the case at bar, in my opinion, are such cases as Durning v. Hyman, 1926, 286 Pa. 376 , 133 A. 568 , 53 A.L. R. 851, and Hardy v. Phila. Nat. League Club, 1930, 99 Pa. Super. 326 . In the Durning case, the court, specifically pointing out that the res ipsa loquitur rule did not permit recovery when a seat in a moving picture theater broke, neverthless said that the jury was permitted to draw an inference of a lack of due care, and that “but slight evidence is sufficient to meet the burden of proof placed on the person injured.” 133 A. at page 569 . In the Hardy case, which arose out of the subsiding of a bleacher stand at a baseball game, the court said that the jury was bound to determine the weight of testimony which was offered to prove the exercise of due care. Like the case at bar, the plaintiff in the Hardy case introduced evidence tending to show the reason for the falling of the stand. The Durning and Hardy cases, like that sub judice, treat of the responsibility of the owner of an amusement enterprise, indicate what burden of proof lies with the injured patron, and reaffirm the doctrine that liability predicated upon lack of due care by the manager of the defective instrumentality is a jury question. On the basis of these cases, I cannot justify the granting of a judgment n. o. v. by the court below.
For the reasons stated, I believe that the judgment of the district court should be reversed.
The general manager of Dorney Park here testified that, in a normal summer season, approximately one-half million people visited the park.
The picnic table in question was not produced in court by defendant, although the general manager of defendant was at the scene of the accident immediately after plaintiff fell, and although he watched' an ambulance take her away.