110 S.E. 96 | N.C. | 1921
Civil action for the recovery of damages for personal injury.
The plaintiff alleged that the defendant owned and operated a cotton mill and mercantile business in the town of Caroleen; that it owned a large tract of land on which its plant was situated and on which had been erected a number of tenement houses, occupied by the operatives of the defendant; that a public highway extended from the defendant's store to Ellenboro, and that the road leading from this highway extended through the defendant's property in the direction of Beasontown in the outskirts of Caroleen; that this road was a thoroughfare used, not only by the defendant's operatives, but by the public generally; that in the spring of 1920 the defendant, for the purpose of gain and profit to itself, organized a baseball team at Caroleen, and permitted the game of baseball to be played on its premises from time to time, and that the defendant hired baseball players and charged its employees and others admission fees. The plaintiff further alleged that the defendant, in order to exclude those who had not paid the admission fee, wrongfully caused to be stretched across the road referred to a rope which was attached to posts or poles on the defendant's premises and thereby wrongfully obstructed said thoroughfare and constituted a nuisance; and that in the month *770 of September, 1920, the plaintiff, while traveling in a Ford car driven by another, came in contact with the rope stretched across the road; that the rope caught under plaintiff's chin and across his throat and violently threw him from his seat in the car, and that he was thereby painfully and seriously injured.
The defendant alleged that prior to the injury it had prepared a diamond on its premises, had purchased the usual paraphernalia and fixtures, and had built a grandstand for the amusement and pleasure of its operatives, but had nothing whatever to do with the management of the baseball team, and received no compensation or profit from the games played therefrom time to time; that the operatives of the mill had organized a ball team for the purpose of playing match games among themselves and others in the community, and that the team charged an admission fee merely for the purpose of purchasing balls, bats, gloves, and other equipment, and that all the proceeds were paid to the ball team; that the defendant had no notice of the alleged obstruction in the road, and had nothing to do with it, and no opportunity to remove it before the alleged injury occurred.
At the close of all the evidence, the defendant moved (721) to dismiss the action as in case of nonsuit. The court granted the motion, and plaintiff excepted and appealed. The right of the plaintiff to recover damages is conditioned in part upon the legal relation that existed between him and the defendant at the time of the alleged injury. In substance, the plaintiff's allegations are, (1) that the defendant directed and controlled the ball team that used the premises and stretched the rope across the road; and (2) that the defendant wrongfully licensed or permitted the team to obstruct the road in this way. It is true that a ball team had been organized to play baseball on the defendant's premises; but there is no evidence that the defendant had anything to do with the "operation" or control or management of the game, or that those who played or conducted the game were in any sense the servants or agents of the defendant. In fact, the evidence seems conclusively to show that the defendant prepared the ground, purchased playground fixtures, and erected a grandstand for the amusement and recreation of the operatives, but did not receive any pecuniary compensation, or pretend in any way to direct or supervise the game. The defendant, therefore, can derive no aid from the familiar principle that the owner or lessor of a place of *771 amusement set apart and maintained for his pecuniary benefits is charged with the duty of exercising due care to see that the premises are reasonably safe for the purposes intended. 38 Cyc. 268 et seq.; 26 R.C.L. 713 et seq.
The plaintiff contends, however, that the obstruction of the road constituted a nuisance on the defendant's premises, and that the defendant, having notice thereof, declined to abate the nuisance, and is therefore liable to the plaintiff in damages. That the unlawful obstruction of a highway is a public nuisance is generally conceded. 29 Cyc. 1177; 20 R.C.L. 399; Dunn v. Gunn,
Affirmed. *772