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|| Park Square - The Trial
The Chronicle, week ending Friday, July 6, 1906
"Considerable comment has been made upon the fact that the iron
seat were not placed in the Park early in the summer. The trustee kept
the seat out of the Park so that a good firm turf might be made before
the seats were placed. Now that the object has been accomplished the
seats will be put in the Park. The seat will be placed by the trustees
and fastened by iron spike. They are not to be moved from their places
under any circumstances. Any seats that are moved will be taken out of
the Park. Children unaccompanied by parents or guardians will not be
allowed in the Park on account of damage to flowers, etc.
The Board makes these rules not with a wish to be arbitrary but
with the sincere desire to preserve the Park in its present state.
Properly cared for the Park is an ornament but if allowed to be trampled
up and strewn with rubbish it would become an eyesore to the town and a
disgrace to the fountain."
By order of the Board of Trustees
s/R. L. Curtis, Clerk
Saturday night band concerts made their appearance sometime later
and were a tradition for many years. During one of those band concerts
in July of 1931 there occurred a most bizarre accident. A woman named
Daisy Whittaker was sitting in her car by the park, listening to the
band concert. A cannon ball fired from the park came through the side
of the car, and shot her foot off.
There were, of course, some serious legal consequences following
that event. On August 7, 1931 Mrs. Coy (Daisy) Whittaker filed claims for
damage against the Village of Franklinville amounting to $35,000.
The first part of the following information concerning this legal
action is paraphrased in the interest of brevity from information
contained in an article which appeared in the Chronicle Journal on
Friday, July 29, 1932:
Whittaker vs. Village of Franklinville went to trial April 7, 1932,
Village Attorney James Pierce with Hon. Orla E. Black, County Judge of
Cattaraugus County of counsel. Attorney for plaintiff was Alfred W.
Saperston of Buffalo, N. Y. with W. W. Rasey of counsel.
Now we actually quote the paper:
"The action arose out of an injury sustained by Daisy Whittaker
when an improvised cannon which was being discharged in the park
exploded, one of the pieces flying through both sides of the car in
which Mrs. Whittaker was riding, injuring one of her feet to such an
extent that it was necessary to amputate it."
"The action proceeded to trial upon the theory that the village had
negligently permitted a nuisance to exist in the park, which was a
public place, and that they had notice of the existence of the nuisance
for so long a time that in the exercise of reasonable prudence it should
have been abated; also constructive notice in that the nuisance had
existed over such a period of years that even though no actual notice
was given, the village authorities should have known of its existence
and maintained that this nuisance resulted in an obstruction of the
street for which the village was liable."
"The jury rendered a verdict in favor of the plaintiff Daisy
Whittaker in the sum of $10,000..." and in a companion case brought by
her husband Coy Whittaker for loss of services, companionship, etc,, an
award to him in the sum of $2500."
The village then made a motion asking the Court to set aside these
verdicts as contrary to law and evidence. Decision was reserved.
On Friday, July 22, 1932 the village attorney received the Court's
decision. The Court directed the Court Clerk to enter in the minutes
of the trial a general verdict of no cause of action in each case,
rendered by the jury at the Court's direction.
The reasons for this decision by the Court appear to have been
various and complex; we are going to oversimplify these for our
purposes; it appears that the opinion of the Court was first and
foremost predicated on the following: "... upon the theory that no
liability attaches to a celebration of the kind held on July 4th, 1931,
unless the village by affirmative acts participates in it by granting a
license; passing an ordinance permitting it ..."
It is interesting to note that if the award in each of the cases
brought by the Whittakers had held up it would have resulted in an
increase in the village tax rate by upwards of $10 per thousand.
To read more of the Park Square story: