152 Mo. App. 95 | Mo. Ct. App. | 1910
The principal contention of the appellants on this appeal is that the trial court, by refusing their peremptory instruction, committed material error, because, they maintain, none of the ma
The controverted questions of fact have been submitted to a jury and settled against the claims of the appellants. The verdict of the jury was for the plaintiffs, and, if there is any substantial evidence in the record to support that finding, their verdict must be sustained. Our Supreme Court has emblazoned on the walls of the appellate courts their positive duty as to facts in negligence cases, that where' the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from the facts proven, the questions of negligence and contributory negligence should-be submitted to the jury. [Eckhard v. St. Louis T. Co., 190 Mo. 593, 89 S. W. 602; McKenzie v. United Rys. Co., 216 Mo. l. c. 22, 115 S. W. 13.] In the case of Westervelt v. St. Louis T. Co., 222 Mo. l. c. 334, 121 S. W. 114, the Supreme Court used this language: “But we will not meddle with that conflict of testimony. The genius of our law has wisely and quite relieved an appellate court from that burden,
The boy, Oliver Murrell, met his death, as we have stated, under a platform erected by and under the charge of the defendants’ managers in the very midst of the fair grounds. This public place where defendants fair was being held for the purpose of attracting and entertaining the people in order to promote their interests, was under the charge of the defendants’ agents, and was open and free to the public attending the carnival. This platform, as the evidence abundantly showed, was some four or five feet above the ground and was erected at a place selected by the defendants and in charge of them and on the grounds which had been advertised as the place for the principal acrobatic, spiritualistic and hypnotic attractions. There was no amphitheatre nor seats of any kind provided for the accommodation of the public which had been invited to the fair, and the large crowd of men, women and children thronged at will from side to side of the grounds and around the platform without let or hindrance. The space underneath was open to the free access of the children and there was nothing to show that they were not invited to go beneath it. During the morning and afternoon of the day on which the fair was held and for hours before the accident, from time to time, children, taking advantage of the open place, were seen to congregate underneath the platform, and made it a resort to eat candy, and pass
The plaintiffs had accepted the invitation of the defendants and visited the fair, reaching there somewhere between six and seven o’clock in the evening. The mother was accompanied by her son, Oliver, her little girl, and a boy by the name of Sammy Hitchcock. Oliver had been with his mother in visiting the attractions of the fair, but left her to go to the west side of the platform in order to get better view of the trapeze performance, on his way home. Some fifteen minutes after he and Sammy Hitchcock left the mother, when the boys reached Campbell street, seeing they could not get through on account of the size of the crowd, went to the platform, and the way being open, went under it. While Oliver was beneath it, the trapeze performance commenced, a crowd rushed upon and surged against the platform, and it collapsed and fell upon him causing his death.
Under the conditions surrounding the entertainment and the manner in which the platform was constructed, or from its surroundings, there was no' reason why children might not think they had a right to go under the platform and play or pass through from side to side. Such an open space right in the heart of the fair grounds was naturally alluring and attractive to the childish instincts and disposition of a boy of the age of the deceased. Under these circumstances, should it be said that those in charge of the fair grounds owed no duty to those children, situated like the deceased was, and that they were not required as a matter of law to secure the platform above the heads of the children to make it free from the danger of falling and crushing them beneath its weight? The appellants contend that the open place beneath the platform was not intended for children, and that although they were invited to the fair grounds on which the entertainments were being given and might
Negligence is a relative term and depends on the circumstances and the obligation which rests on the party injured to care for his personal safety and must adjust itself to surroundings. [29 Cyc. 429.] Children, wherever they go, must be expected to act on their childish instincts and impulses, and those who are chargeable with a duty of care and caution toward them must calculate upon this and take precautions accordingly. The 'doctrines of responsibility announced by our courts in the turn-table cases are but special applications of and based upon the principles above declared. They are, to some extent, extreme applications, and not unnecessarily to be further extended. The appellants contend that the doctrines of
Appellants further contend that the platform was only constructed to accommodate the performers and that it was properly constructed to answer that purpose. There can be no reasonable doubt but what those in charge of the fair intended that this platform should be used only by performers, and that it was constructed sufficiently strong for that purpose. There were physical facts as well as testimony that speak very plainly that the platform was not intended to be occupied permanently by the crowd in attendance at the fair as spectators, and it was apparent that it was intended only for performers; among other pertinent facts, no chairs or seats were placed upon the platform, and no ladder or other means was prepared by which people could enter upon the platform, and the further fact that it was actually occupied by per
Appellants contend that while they had invited the public to attend the fair, such invitation did not justify them in-intruding themselves upon places on the premises not intended for their use, and that they were as much trespassers in getting upon the platform under the circumstances as if they had mounted' a buggy or carriage to which horses were hitched and being exhibited for premiums, or had perched themselves upon wires intended for performers; and that the invitee must restrict himself to the premises to which he is invited and not stray upon parts of the premises obviously not included in his invitation.
This argument would have very convincing force if • the persons who climbed upon the platform and thereby became trespassers had themselves been injured by reason of their wrongful act; but as to the child underneath the platform and the duty of the defendants to protect him, another legal rule is brought into operation. It is quite immaterial in this case whether the people occupying the premises were licensees, invitees or trespassers for the reason that this was not an action by those persons for any injury they received by the fall of the platform. The gravaman of the plaintiffs’ case is the negligent failure of appellants to use due care to keep the place in a safe condition; the negligence as charged consisted in not using proper care, and in permitting the platform to be so used and thereby rendered unsafe to other persons not thereon without using such means as a reasonably prudent man would have used under-similar circumstances and conditions to properly guard the platform and properly to warn the people around it or under it of the danger that might befall them. The law as to the liability of those who take charge of public resorts and places of amusement has received numerous applications and speaks in no un
The immediate antecedents of the injury show clearly enough how it was brought about. The band, at the head of the automobile parade, with a large crowd of people following, was led by one of the defendants ’ managers to the south side of the platform in question to witness the trapeze performance, and an immense crowd of people gathered around this platform. When the performance of the trapeze commenced and was at the interesting stage, the trapeze performer walking with his head down, the curiosity of the spectators was raised to its greatest height to see the man walk on his head. The situation of the platform and its height was such that those spectators nearest Campbell street, northeast of the platform, had their view of the performance on the trapeze more or less shut off by the platform, and, as they were about to lose the most interesting part of the whole show, naturally climbed to any eligible position where they could better witness the man who was walking on his head. This platform was four or five feet above the ground and afforded a fine view to those on it of the trapeze performance, and a large number of people availed themselves of it, as might well have been anticipated. At the same moment that those in front climbed onto the platform, those behind pressed forward to fill their places and to get for themselves a better view of the performer, and others surged forward around and against the platform, and the two forces caused it to collapse and bring about the death of plaintiffs’ son. Under this evidence, it was for the jury who were supposed to be specially qualified to pass upon questions of fact, to have determined whether
Every person who attended the fair upon defendants ’ invitation to witness the exhibition was in law the guest of the defendants and the managers of the association who were in charge of the grounds and the .structures erected thereon, and as such, they were responsible for the manner in which the fair was conducted. While this relation continued, the law imposed upon them the duty of protection against dangers which could reasonably have been anticipated, and which they ought to have foreseen and by the -use of ordinary care could have prevented if due care had been taken with reference to possible accidents of the kind. This duty of care' and protection not only required that defendants themselves should refrain from injuring the spectators in attendance, but further that they should exercise affirmatively the active duty of protecting such persons from all dangers arising from their surroundings and preventing injuries that might arise from the negligence of other persons, so far, at least, as such danger or negligence could reasonably have been anticipated and reasonably guarded against. [Scofield v. Wood, 49 N. E. 636; Larkin v. Beach Co., 3 L. R. A. (N. S.) 982; Hart v. Washington Park Club, 41 N. E. 620; Lane v. Minn. State Agri. Society, 29 L. R. A. 708; Williams v. Mineral City Park, 1 L. R. A. (N. S.) 427; Thornton v. Maine State Agri. Society, 53 Atl. 979; Richmond & M. Ry. Co. v. Moore’s Admr., 27 S. E. 70; Indianapolis St. Ry. Co. v. Dawson, 68 N. E. 909; Mastad v. Swedish Brethren, 85 N. W. 913; Fox v. Buffalo Park, 47 N. Y. Suppl. 788; Hollis v. K. C., Missouri, Retail Merchants’ Assn., 205 Mo. 508, 103 S. W. 32.]
It is claimed by appellants that the climbing of the spectators upon the platform and the surging of the crowd against and around the platform was an intervening cause which produced the boy’s death, and for which, therefore; the appellants should not be held responsible. “It is well settled that the mere fact that
The defendants in this case selected and controlled their own agents, put them in control of their own grounds, and had exclusive control over the management of the entertainment, and under the law fixing their social duty, they were required to so conduct themselves as not to injure others by their negligence. The case of Thompson v. Lowell, L. & H. S. R. Co., 40 L. R. A. 345, grew out of a free exhibition of markmanship where a spectator while in attendance received an injury for which he brought suit. The court, in discussing the case, said: “The defendant contends there was no evidence upon which the jury was justified in finding that the plaintiff was injured by any negligent act or omission on its part; or, in other words, that there was no evidence of any failure on its part to perform its duty in the premises. The question is suggested how far the defendant is bound to go in supervising the instruments and appliances used, and the other details of the exhibition. Should it be held to inspect the rifle and the cartridges, to see if they were safe? Without undertaking to go into unnecessary detail, it is apparent that there was evidence
Appellants have also raised objections to the sufficiency of the pleadings and the instructions given by the trial court, but on full examination we find no material errors which under our practice would authorize a reversal. It is therefore ordered that the judgment be affirmed.