118 F. 713 | 5th Cir. | 1902
This action was instituted on behalf of plaintiff, Edward H. Brittain, in .the circuit court for the Northern district of Texas, against the Texas State Fair, to recover damages for injuries to himself. His allegations show substantially that the Texas State Fair is a corporation organized under the laws of Texas, with its principal place of business in Dallas; that said fair is the owner of ioo acres or more of land, which, being inclosed within a high board fence, is, together with the buildings and structures thereon, used by said corporation for carrying on the business of an annual fair or exposition, to which the public are, by advertisements in newspapers and otherwise, invited; that said Texas State Fair carried on and controlled separately, as a part of its business enterprise, a number of side-show attractions, all of which were within the said fence inclosure; that an admission fee was charged at the entrance of each of the several side shows; that, in accordance with such said newspaper and other advertisements, said fair was on October 3, 1900, carrying on at nighttime a side show called the “Burning of Chicago”; that said side show, though ostensibly under the direction of a firm known as Smith & Lucas, was in fact under the management and control of the Texas State Fair, the said side show being advertised as one of its attractions; that said Texas State Fair was largely interested in the expense and profits of said side show, and, if said Smith & Lucas had any connection or interest therein, such interest was not known to plaintiff or to the public; that plaintiff was led to believe and understand from said advertisements that said side show was a part of the attractions managed by the Texas State Fair, and to which it invited the public; that on October 3, 1900, plaintiff, having paid admission fee, entered said side show, and took a seat on the seats furnished by Texas State
The record shows that counsel for plaintiff in error sought a new trial, charging the trial court, in his motion therefor, with 24 separate erroneous rulings, besides the 17 errors made in overruling the same number of demurrers or exceptions to the petition of defendant in error. Those several assignments charging the trial court with erroneous rulings on the pleadings and during the trial proceedings are more or less emphasized again in the 25 assignments of error disclosed in the briefs of plaintiff in error. The formidable array of assignments of error found in the record has not forbidden a careful consideration
It may be, as between the Texas State Fair and Smith & Lucas, the latter were authorized, on such terms as to them were satisfactory, to carry on and supervise the side show; but it seems clear that no contractual relations between such parties can be invoked to release the state fair, under the state of case shown in the record, from the duty of exercising reasonable care in the interests of the people who were attending that fair, or were witnessing such attractions in side shows as it offered to the public. When Brittain paid his admission fee and entered upon the seats in question, it was a matter of no importance to him who had erected the seats. Whether the representatives or managers of the fair, or Smith & Lucas, furnished the seats, he had a right to expect that he would be provided with reasonably safe seats. The case of Texas State Fair v. Marti was founded on the
“No matter by whom the seats were erected, it was the duty of the plaintiff in error, Texas State Fair, to see that the same were in reasonably safe condition before inviting the public to occupy them.”
We think the rule cited from Cooley fully vindicates what we quote above from the Texas court’s opinion. This view of the Texas court is supported by a number of cases cited by the court. Among them are Railway Co. v. Moore’s Adm’r (Va.) 27 S. E. 70, 37 L. R. A. 258; Conradt v. Clauve, 93 Ind. 478, 47 Am. Rep. 388; Sebeck v. Plattdeutsche Volkfest Verein (N. J. Err. & App.) 46 Atl. 631, 50 L. R. A. 199, 81 Am. St. Rep. 512, and others. In the New Jersey case cited it was held that:
“Whether invited upon the premises by contract of service, or by the calls of business, or by direct request, is immaterial. The party extending the invitation owes a duty to the party accepting it to see that at least ordinary care and prudence are exercised to protect him against dangers not within his knowledge, and not open to observation.”
Conceding that the jury found correctly on the issuable material facts which show the legal relations of Smith & Lucas to the Texas State Fair, we think it follows, under the rule of law which we cite from the Louisiana and Texas cases, that the negligence which was the proximate cause of Brittain’s injury is chargeable to the Texas State Fair, and that the judgment of the circuit court rightfully held the said corporation liable in damages.
The judgment of the circuit court is affirmed.