Thompson v. Lowell, Lawrence, & Haverhill Street Railway Co.

Allen, J. The St. of 1895, c. 316, authorizes street railway companies to acquire, hold, equip, and maintain real estate to be used for purposes of recreation and for pleasure resorts, the admission being free. By virtue of this statute, the defendant — 582 — maintained such a place on the line of its railway, which contained a large platform or stage for exhibitions. The defendant entered into a written contract with a manager, under which the latter furnished and managed various entertainments there, and amongst them an exhibition of marksmanship by a man born without hands. The defendant paid for advertising these exhibitions, and carried posters on its cars. The plaintiff, having seen an advertisement, was a spectator at the exhibition of marksmanship, having come on one of the defendant’s cars. A butt was provided to receive the bullets. All the appliances were furnished by the manager or the performer, and nobody in the defendant’s employment exercised any supervision or control over the performance. Immediately after' a shot had been fired, something struck the plaintiff in the eye. It is not made plain just how the accident occurred, but on the evidence the jury might find that the plaintiff was struck in the eye by a small fragment of a bullet or other metallic substance which flew from the impact when the bullet hit the butt. There was no- suggestion that he was not himself in the exercise of due care, or that he was not in a place provided for spectators. The defendant asked for an instruction to the jury that it “ was not responsible unless the exhibition was in its nature such that it would necessarily bring wrongful consequences to pass, unless guarded against, and the defendant failed to exercise due care to prevent harm.” The judge, instead thereof, instructed the jury that “ the defendant is not responsible unless the exhibition was in its nature such that it would necessarily or probably cause injury to some person present under the defendant’s invitation, unless guarded against, and the defendant failed to exercise due care to prevent harm.” The fact that the exhibition was provided and conducted by an independent contractor would not wholly relieve the defendant from responsibility, provided it was of such a kind that it would probably cause injury to a spectator, unless due precautions were taken to guard against harm. Curtis v. Kiley, 153 Mass. 123. Richmond & Manchester Railway v. Moore, 94 Va. 493. Southern Ohio Railroad v. Morey, 47 Ohio St. 207. Hawver v. Whalen, 49 Ohio St. 69. Bower v. Peate, 1 Q. B. D. 321. The instruction as given was right. But even under this rule the defendant contends that there was — 583 — no evidence upon which the jury were 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 was 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 tending to show that the accident happened from a cause which might have been prevented, and that it ought to have been foreseen and guarded against by somebody, either by the defendant or by the manager; and the jury might come to the conclusion that in the general arrangements for an exhibition of this nature the butt should be so placed that fragments which might fly from the impact of the bullets could not reach the spectators, and that due care was not taken in the arrangement of the stage with reference to possible accidents of this kind, and that the defendant itself failed, in its duty in this respect. We cannot say that this was so much a matter of transitory detail that the manager alone was responsible for an omission to pay proper attention to securing the safety of spectators from such a risk. The case, therefore, was rightly submitted to the jury. Nor can it be held that the plaintiff assumed the risk. He might well rely on those who provided the exhibition and invited him to attend, to take due care to make it safe from such an injury as he received. Exceptions overruled.