Jacobs v. Hagenbeck-Wallace Shows

Ostrander, J. (after stating the facts). Not all of the questions which the defendant says are involved are pressed upon the attention of the court, and not all of those denoted require discussion. — 86 — 1. The suit at bar and nine other similar suits were begun on the day the alleged injuries were received. Defendant is a foreign corporation. A large number of people attended the circus. The circumstances invited public interest and discussion, and the charges that the defendant’s agents did not properly secure the tent and safeguard the patrons of the show, and the respects in which they were charged with being derelict, were known in and about Sturgis and were discussed there and elsewhere in the county. There were not lacking those who expressed opinions upon the subject, unfavorable to defendant. This appears from the affidavits filed in support of the motion for a change of venue, the affidavits in most instances expressing the belief that an impartial trial of this case could not be had in St. Joseph county. So far as opinions are to be considered, affiants who made affidavits opposed to the motion expressed a contrary opinion. In the original declaration, the damages were laid at the sum of $1,950, it was later amended so as to claim damages in the sum of $2,990, and the inference is drawn, not unreasonably, that a removal of the cause to.the Federal court was something counsel for plaintiff desired to prevent. It is assumed, nothing to the contrary appearing, that no difficulty was encountered in securing a jury, and there is no claim made that the damages awarded, $1,000, were excessive, there being testimony to support the conclusion that injuries received by the plaintiff were permanent. Assuming that questions of fact were properly submitted to the jury upon competent and material testimony, the result of the trial is not indicative of a hostile public sentiment or of prejudice on the part of the jury. There is no inevitable legal inference from undisputed facts that local prejudice existed, and none that the court below abused judicial discretion in denying the motion for a change of venue. — 87 — People v. Gage, 188 Mich. 635, 643 (155 N. W. 464). 2. While the declaration alleges as inducements to plaintiff to enter the tent an advertisement, circulated by defendant, to the effect that the tent was storm proof and wind proof, and it is duly alleged that plaintiff paid the price asked by defendant for a seat in the tent, the gravamen of the action is negligeince. Whether defendant was negligent in all or any of the respects alleged, and whether the negligence proved was the proximate cause of the injury received by plaintiff, were questions fairly raised by testimony produced by plaintiff, and questions which could not and cannot now be properly answered by the court. The testimony for plaintiff tends to prove that the storm was an ordinary summer storm; that stakes which it was usual to drive into the ground from 30 to 36 inches were driven only from 18 to 24 inches, or a less distance. The inference is not unreasonable that, if the stakes on the easterly side of the tent had held, no mischief would have resulted. Defendant contended, and contends, that it used ordinary care in providing and in erecting the tent, that the storm was extraordinary, was, indeed, so violent that such acts of negligence on its part as are alleged were, as to the consequences, negligible. In an opinion delivered in the case of Cole v. Loan Society, 124 Fed. 113 (59 C. C. A. 593, 63 L. R. A. 416), relied upon by counsel for defendant, it was said; “An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or rea — 88 — sonably anticipated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the .natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it — the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. * * * “The test of liability, therefore, in cases of concurring negligence is the same that it is in all other actions for negligence. It is the true answer to the questions: Was the injury the natural and probable consequence of the act on which the action is based? Was it reasonably to be anticipated from that act? If it was, the action may be maintained, although the negligence of another concurred to produce the untoward result. If it was not, the act of negligence will not sustain an action, whether the act of another concurred or failed to concur to produce it. A negligent act from which an injury could not have been foreseen or reasonably anticipated is too remote in the line of causation to sustain an action for an injury in every case, and the concurring negligence of another cannot make it less remote, nor charge him who committed it with responsibility for it to which he would not have been liable to answer in the absence of the negligence of the third party.” It is lawful that public entertainments shall be given in tents. Proprietors are not insurers of the safety of patrons, but they must exercise, to prevent disaster, care commensurate to the situation. See Scott v. Athletic Ass’n, 152 Mich. 684 (116 N. W. 624, 17 L. R. A. [N. S.] 234, 125 Am. St. Rep. 423); Logan v. Agricultural Society, 156 Mich. 537 (121 N. W. 485); King v. Ringling, 145 Mo. App. 285 (130 S. W. 482). In the latitude of Michigan, summer storms with wind and rain are, common, the wind often attaining considerable velocity and doing considerable — 89 — injury. Such storms often arrive, break suddenly, and are as soon gone. These were .circumstances to be considered by the defendant in erecting the tent. They were to be considered, also, by patrons, who could not expect that tents, however well constructed and erected, would be as substantial as houses and afford the same protection from the elements. The doctrine of the case just referred to, applied here, required that the jury, upon the whole case, determine whether the facts upon which defendant’s liability depends, were established. 3. It is urged, and is true, that the testimony for the plaintiff fails to show what object struck him, except as the cause of injury may be inferred. It is a reasonable, if not necessary, inference, that he was struck by some of the paraphernalia of the tent, a" stake, or pole. There is no testimony to support an inference that objects not connected with the tent, and set in motion by the action of the canvas, entered the tent and inflicted the injury. Scott v. Railroad Co., 182 Mich. 514, 522 (148 N. W. 719), and cases cited in opinion. Considering that the testimony required the case to be submitted to the jury, and the court having submitted it, it remains to be seen whether reversible error was committed in the charge, in admitting or rejecting testimony, or otherwise in the conduct of the trial. 4. The charge of the court must be read as a whole and with regard to the contentions of the parties. The jury was.instructed that the plaintiff must establish, by a preponderance of the evidence, that defendant was guilty of negligence, and that its negligence was the proximate cause of plaintiff’s injury; “that circus tents are not erected with a view to resist storms of such an unusual or extraordinary character as may not by the exercise of ordinary care and foresight be reasonably anticipated or provided for or — 90 — guarded against. * * * Ordinary care * * * is the measure of duty of defendant, and the jury have no right to hold defendant to a higher degree of duty if the evidence left it as probable that the injury was the result of the storm as the sol.e and proximate cause as it did that it was the result of defendant’s alleged negligence as the sole proximate cause, plaintiff could not recover. Other portions of the charge have been set out. One request to charge, No. 41, was: “The defendant was not required to contemplate or provide against unusual or extraordinary storms.” And another, No. 43, was: “As applied to this case, an act of God may be defined as a natural cause, such as a storm of wind, whatever its characteristics may be, which cannot be prevented by the exercise of ordinary care and the use of those appliances which the situation of the party renders it reasonable that he should employ.” Neither was given as preferred. As. to No. 41, it was said, in refusing a new trial, that it “lacked this additional language: ‘Of such a character that human care and foresight could not anticipate or guard against.’ It was covered by general charge.” Defendant was bound to anticipate the ordinary usual storm of the season and latitude and its probable consequences, reference being had to the character of the structure to which the public was invited, and in view of such a storm arising, and in view of its probable consequences, it was bound to use ordinary care in the selection and erection of the tent. If it did this upon the occasion here in question, it is not liable in this action. If it did not, then it may be liable unless the storm was so violent in character that, whether defendant was or was not negligent, in the respects indicated, the result would have been the same; unless to the storm may be charged whatever occurred. — 91 — This, in substance and effect, is the rule given to the jury, and is the correct rule; but as applying the rule, and as affecting its possible liability, I am impressed that defendant was entitled to have its requests 41 and 43 given as preferred. The court went further. The jury was told that the burden rested upon defendant to prove that the storm was so violent that it was the sole proximate cause of plaintiff’s injury. In this the court was in error, because plaintiff, upon the whole case, was bound to prove that defendant’s negligence was the proximate cause of the injury. The rule stated by the court has been applied where goods intrusted to a common carrier were lost or destroyed. In the absence of contract, the common law imposed upon common carriers the extraordinary liability of insurers against all loss unless occasioned by the act of God or the public enemy, and the carrier was not permitted to throw upon his employer the burden of proving, or inferring, negligence or defective means until the carrier had shown the intervention of such an extraordinary, violent, and destructive agent as by its very nature raised the presumption that no human means could resist its effects. See, generally, McArthur v. Sears, 21 Wend. (N. Y.) 190; Coggs v. Bernard, Lord Raymond, 909, and note, 1 Smith’s Lead. Cas. (8th Ed.) 369, 422; Tobin v. Railway Co., 192 Mich. 549 (159 N. W. 389). No such extraordinary liability is imposed by the law upon the defendant. The court was not in error in advising the jury upon the subject of the duty of defendant to warn the audience of the approach of the storm, correctly stating that as affecting this duty was the actual condition of the tent, presumably known to defendant. It might well have added to the instruction that if the storm was an ordinary one, as plaintiff claimed it — 92 — was, and the tent was put up as defendant asserted it was, there could arise no duty to warn. It is not difficult, after a critical reading of the charge, to suggest additions to and variations of the language calculated to enlighten the jury. None was made by defendant, whose requests to charge, except as given in the general charge, as indicated herein, it was not error to refuse. 5. In view of the téstimony tending to prove the physical condition of plaintiff and permanent injuries, it was not reversible error to admit in evidence the tables of mortality showing his expectancy of life. It is true that Dr. Kane, the only witness upon the precise subject of a continuing injury, testified only that his condition might continue during life. But plaintiff was 82 years old when he gave his testimony. (He has since died.) He was hit on the head, and a bad wound resulted. He was thought by some to be dead. Effects of the injury were that he was dizzy, walked with difficulty, using a cane. He lost his balance when standing and fell. Pain continued. He testified at length to his condition. He had enjoyed excellent health, never had been sick. The court instructed the jury not to regard the tables unless they were convinced to a moral certainty that a permanent injury was received. 6. It was ei.yr to admit opinion evidence tending to prove that the stakes should not- have been driven vertically, at right angles with the earth, and should have been driven at another angle. No witness who expressed such an opinion was shown to have had any experience in securing large tents to the earth. It has been pointed out that the method of driving stakes employed by defendant is, according to the undisputed testimony, the method employed in securing all large circus tents; is the method which experience has demonstrated to be best. — 93 — It was error to admit testimony tending to prove that, either before or after the storm, employees of defendant admitted that the tent was not properly erected, or made statements from which the inference of negligence would arise. Otherwise, if, at any time, responsible officers and agents of defendant made such admissions. The witness Simpson was asked, and over objection and exception he answered, this question: “Q. I wish you would state whether in your opinion if those stakes had had proper points on them and were driven to a depth of 30 to 36 inches whether or not in your opinion they would have held and not pulled out in that storm as you observed it, with the tent as you observed it, sitting up' there?” He answered: “A. Why, I should think they would have held.” This witness had not qualified as an expert in this behalf, nor does it appear upon what premises his conclusion was based. 7. It is complained that plaintiff’s attorney used in argument intemperate language. As reported, it was most intemperate. As it was immediately disclaimed, it may or may not have prejudiced defendant. It will not be assumed that upon a new trial-it will be repeated. 8. A careful examination of the large, record presented in this case has not convinced me that the verdict is opposed to the great weight of evidence. For errors pointed out, the judgment must be reversed, and a new trial granted, with costs to appellant. Kuhn, C. J., and Stóne, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.