82 N.J.L. 464 | N.J. | 1911
The opinion of the court was delivered by
The question is whether there was error in the direction of a nonsuit in the Camden Circuit Court. The declaration charges that the defendant operated a pleasure resort called Wood Lynne Park, and invited plaintiff into the same for the purpose of entertainment and amusement; and that while she was there defendant’s agents negligently and without warning set off a sky rocket which struck and injured plaintiff.
The accident was apparently due to a misdirected rocket falling or shooting into the crowd and striking the plaintiff; and, as will be seen from the abstract of the declaration at the head of this opinion, the attempt is to hold the defendant as for the negligence of an agent or servant in setting off the rocket in question. But, as we read the brief of plaintiff’s counsel (there was no oral argument), no such claim is now made. Tie says: “There is no pretense that the rocket which
Whether the case is rested on this ground or on the ground of negligence in Eomain or his employes, the nonsuit was properly directed. As to the management of exhibitions and spectators, we do not see how any greater care could have been exercised without placing the spectators too far away to see advantageously. In this respect, the case resembles the case of Sebeck v. Plattdeutsche Volksfest Verein, 35 Vroom 624, which arose out of a fireworks accident under very similar circumstances. In that case the crowd was only one hundred feet away, instead of three times that distance, yet this court held that while the proprietors of the place in question were bound to use reasonable care to provide a safe place from which to view the exhibition that duty was performed by keeping the crowd back to the distance mentioned. In the case at bar, the distance was much greater, and the preservation of .that distance was, insured not only by the police but by the intervening sheet of water.
As to the negligence, if any, in discharging the rocket, there is no direct proof, and the claim must be based on the maxim res ipsa loquitur. But, as we have already seen, any claim on this score is disclaimed; and if it were not, still it could not avail, because the negligence, if any, was that of an independent contractor. The argument seems to be that notwithstanding the uneontradicted proof showed that Romain was employed as a fireworks expert for a lump sum to set off certain designated fireworks on defendant’s property, and was not controlled in any way by defendant or its agents as to the method and details of his work, except the place and time of
In 26 Cyc. 1546, an independent contractor is defined to be one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. The evidence for the plaintiff brought Eomain fully within the definition just quoted, and which we deem adequate for the purposes of this case. It follows, therefore, that for any negligence of himself or his own employes in setting off the fireworks, the defendant is not responsible. The case of Crowley v. Fireworks Company, 183 N. Y. 353, cited for plaintiff, is really against- his contention, for the defendants in that question were the contractors employed to give the exhibition.
So, as there is no evidence of negligence cf defendant in making Ihe arrangements for giving and witnessing the exhibition, and any negligence of Eomain is not imputable to defendant, and as there is no pretense that defendant failed to use due care in selecting a skillful and compelen! contractor, Hiere was nothing for a jury to lay hold of, and the nonsuit was rightly ordered.
The judgment will be affirmed.
For affirmance—The Chano bulos, Chine Justice, Garrison, Swayze, Trenchaed, Parker, Vooehees, Bogert, Veedenburgh, Congbon, JJ. 10.
For reversal—Bergen, Kaliscit, White, JJ. 3.