Patterson v. City of Lexington

Devin, J. The fact that the grass-covered bank or ramp on which plaintiff was seated as she watched the baseball game was customarily or frequently used by spectators for this purpose was sufficient to impose upon the defendants a duty to exercise ordinary care for the prevention of injury to those whom it invited and who chose to sit on this bank, but we *639 think the evidence here fails to disclose negligent breach of such duty proximately causing the injury complained of by the plaintiff. Baseball is an outdoor game. Those who operated a park appropriate for playing this game for the entertainment of spectators, as shown by the evidence in this case, would not be expected to maintain the grass-covered slopes of an embankment on which some spectators chose to sit entirely free from roughness or unevenness or slight depressions. Defendants were not insurers of the safety of those who entered their park but were only held to the obligation of exercising due care to prevent injury which reasonably could have been foreseen and to give warning of hidden perils or unsafe conditions ascertainable by reasonable inspection. Bowden v. Kress, 198 N. C. 559, 152 S. E. 625; Williams v. Stores Co., Inc., 209 N. C. 591, 184 S. E. 496; Anderson v. Amusement Co., 213 N. C. 130, 195 S. E. 386; Watkins v. Furnishing Co., 224 N. C. 674, 31 S. E. (2) 917; Drumwright v. Theatres, Inc., 228 N. C. 328, 45 S. E. (2) 379; Hahn v. Perkins, 228 N. C. 727, 46 S. E. (2) 854; 38 A. J. 754. Plaintiff thinks it was a hole which caused her foot to turn, though she was not sure, or probably it might have been a rock or an empty Coca-Cola bottle which had been tossed aside by some spectator, or, as suggested by defendants, a dent or depression caused by the heels of some sitter on the sloping bank. The determination of the exact cause of her fall thus involves an element of speculation. Hahn v. Perkins, supra. No complaint is made that the defendants failed to provide ushers to conduct persons to or from seats on this bank, as apparently none were needed, nor is it alleged there were insufficient lights. Drumwright v. Theaters, Inc., supra. Plaintiff found her way safely along a path and to the place where she chose to sit but she did not return the same way. Burns v. Charlotte, 210 N. C. 48, 185 S. E. 443; Walker v. Wilson, 222 N. C. 66, 21 S. E. (2) 817. Whether in any event the City of Lexington as lessor of the park, under the terms of the lease, could be held liable for negligence in causing or permitting on this bank a hole or depression, such as the plaintiff has described, need not be determined, as we think the plaintiff has failed to make out a case of actionable negligence. The judgment of nonsuit is Affirmed.