Good writing is a rare commodity in law school, as in the legal world generally. Mercifully, there are a handful of judges who are a joy to read. One is Benjamin Cardozo, who was on the New York Court of Appeals–the state’s high court–from 1914 till 1932, when he was appointed to the US Supreme Court. His opinions are really something–full of wit and open disdain for the party he thinks is full of it. Anyway, I came across a passage I savored particularly the other day.
The background of this 1929 case is as follows. The plaintiff was at Coney Island when he and his companions decided to take a turn on a ride called The Flopper. The Flopper was essentially a treadmill on an incline surrounded by padded walls and pillows. The ride followed a predictable course, in the insipid way of amusement park rides at the time. The rider got on the treadmill, which was moving at a trot’s pace, and then tried to stay on as long as possible. People in the 1920s being, apparently, of only slight athletic ability, riders would get on, take a step or two, then “flop” onto the surrounding bed of pillows, surely squealing with delight. They had faced peril head on–they’d paid for it even–and they’d come away from the encounter unscathed. The plaintiff–to whom Cardozo assigns the sneering epithet “a vigorous young man”–may, too, have squealed. If he did, it wasn’t in delight. He got on The Flopper, having watched friend after friend flop, promptly flopped, and in the process broke his kneecap. Predictably, he sued the ride’s operator. Here’s Cardozo; the crescendo is something, and the kicker really sings:
“Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. . . . The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.”