Dowell v. Guthrie

Decision Date10 February 1890
Citation12 S.W. 900,99 Mo. 653
PartiesDowell, Appellant, v. Guthrie et al
CourtMissouri Supreme Court

Appeal from Pike Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

George Robertson and H. S. Priest for appellant.

(1) The defendants were in charge of fireworks with which they were giving a pyrotechnic display, were in the heart of a populous part of the city, and the streets immediately surrounding them were thronged with men, women and children. The law therefore, out of its regard for human life and safety demanded great care of them. They were bound to exercise more than ordinary care. Whitaker's Smith on Neg. 231 et seq.; Thompson on Neg., pp. 238-248; Scott v. Shepherd, 2 W. Bl. 892; Bullock v. Babcock, 3 Wend, 391; Morgan v. Cox, 22 Mo. 374; Conway v. Reed, 66 Mo. 348; Lowry v. Manhattan Co., 99 N.Y. 158; King v. Ford, 1 Stark. 421; Cooley on Torts [2 Ed.] 705, star p. 594, and authorities there cited. (a) The care which persons are bound to take, in order to avoid injury to others, is proportionate to the probability of injury that may arise to others. He who does what is more than ordinarily dangerous is bound to use more than ordinary care. Morgan v Cox, supra, and authorities, supra; Castle v. Duryea, 32 Barb. 480. (2) The plaintiff was injured by a sky rocket that was under the control of and in charge of defendants. From this fact negligence of the defendants will be presumed. Whitaker's Smith on Neg., p. 420; Railroad v. Anderson, 39 Am. Rep. 787; Breen v. Railroad, 4 Am. State Rep. 450; Dougherty v. Railroad, 9 Mo.App. 478; Morgan v. Cox, supra; 2 Thompson on Neg., p. 1220 and notes. (a) This fact makes a prima facie case for plaintiff and the burden is shifted upon the defendants, who must then excuse themselves to avoid liability. Authorities last cited; Thompson on Neg. 1235, sec. 8; Tally v. Ayers, 3 Sneed (Tenn.) 677. Instructions numbered 1, 2 and 4, given on the part of defendant, are, therefore, erroneous, and instructions numbered 2 and 8, asked by plaintiff, should have been given. (b) The defendants are bound to show such circumstances as will make it appear to the court that the injury done to the plaintiff was inevitable, and that they were not chargeable with any negligence, "for no man should be excused of a trespass unless it may be adjudged utterly without his fault." Morgan v. Cox, supra. The plaintiff proved that the defendants went upon the veranda, and placed upon it, in near proximity to the projectiles they were firing, boxes, bundles and packages of fireworks; that the fire from the exploded rockets was thrown back on the veranda near to the fireworks so placed there by defendants and handled by them; that defendants carried lighted cigars while handling the combustibles -- smoked all the time; that about the time plaintiff was injured an explosion of the fireworks, upon the veranda, occurred. This was also the evidence of defendants, and these facts stand undisputed in the case. The court should have declared that these facts constitute negligence on the part of the defendants, because the selection of the center of a promiscuous crowd to shoot off fireworks was negligence per se. Jenne v. Sutton, 43 N. J. L. 257; Conklin v. Thompson, 29 Barb. 218. (a) Because, these facts showed a want of ordinary care on the part of defendants. Durant v. Palmer, 29 N. J. L. 546; Vaugh v. Scade, 30 Mo. 601. (b) Because these facts disclose that lack of diligence and effort upon the part of defendants which was exacted of them by their surroundings. 2 Thompson on Neg. 1223, note 6; Morgan v. Cox, supra. (c) Because these facts disclose a state of conduct on the part of defendants that shocks the common mind as being wholly inconsistent with that of persons of ordinary prudence. 2 Thompson on Neg. 1238, note 12; Cooley on Torts, [2 Ed.] 801-804, star p. 670. (d) Because the conclusion to be drawn from such facts is inevitable. 2 Thompson on Neg. 1236, note 11; Cooley on Torts [2 Ed.] 804, star p. 670. (e) Because all reasonable men would agree that these facts disclose an absolute want of care commensurate to the undertaking. Cooley [2 Ed.] 804. (f) Where the facts are clear and undisputed it is the duty of the court to declare the inference from these facts. Fletcher v. Railroad, 64 Mo. 484; Mauerman v. Seimerts, 70 Mo. 101; Bell v. Railroad, 72 Mo. 50; Henry v. St. Louis, etc., 76 Mo. 288. Where negligence is clearly defined and palpable, such that no verdict of a jury could make it otherwise, it should be decided by the judge as a matter of law. Thompson on Trials, secs. 1674 and 1673. The court, therefore, erred in refusing instructions numbered 1, 2, 3, 6 and 7 asked by plaintiff. (4) There is no question of contributory negligence in this case. It was not negligence for the plaintiff to remain in sight of the fireworks display. There was no evidence to show that plaintiff had anything to do with the display. He did not contribute to the expense of buying the same and was not aware that any such display would take place till it was commenced. He had a right to proceed to the performance of his part of the occasion, relying upon the belief that the defendants would exercise that care proper under the circumstances, and such as would be reasonably expected from men of ordinary prudence and forethought. Whitaker's Smith on Neg. 419. (5) The court erred in refusing to direct the jury to retire and fix the amount of plaintiff's damage at his request. Thompson on Trials, sec. 2685; Jones v. Foster, 67 Wis. 296; Wyandotte v. Gibson, 25 Kan. 236. Because, then under the special verdict, plaintiff would have been entitled to a verdict, and to have the general verdict in favor of defendants set aside. (6) The court erred in using the word "accidents" and "accident" in defendants' instructions 3 and 4 without defining an accident in law. The court erred also in refusing instruction number 4 asked by plaintiff, defining an accident in law. An accident in law is an event happening unexpectedly and without the fault of persons. Leame v. Bray, 3 East, 593; Cooley on Torts [2 Ed.] 92, star p. 80.

G. B. Macfarlane for respondents.

(1) If plaintiff and defendants were engaged in a lawful enterprise, then each owed to the other only the duty of exercising such care and taking such precaution as would have been taken by persons of ordinary prudence and forethought under all the circumstances. Whitaker's Smith on Negligence, 45; Richards v. Sperry, 2 Wis. 165; Frick v. Railroad, 5 Mo.App. 441; Wharton on Negligence, sec. 1, notes; Railroad v. Jones, 95 U.S. 441; Whitaker's Smith on Negligence, 22, notes; 17 Cen. Law Journ. 261. (2) If plaintiff and defendants were engaged in an unlawful enterprise, defendants are not liable to plaintiff for negligence in carrying it out. Cooley on Torts, 151; 1 Hilliard on Torts, 172, sec. 24; Sumner v. Summers, 54 Mo. 340; Hamilton v. Marks, 25 Mo. 165; Hall v. Corcoran, 107 Mass. 253; Wert v. Potts, 41 N.W. 374. (3) Explosion of fireworks in the streets was a nuisance and unlawful. Wood on Nuisances, 61, sec. 54; Conklin v. Thompson, 29 Barb. 219; Jenne v. Sutton, 43 N. J. Law, 257. All persons participating in the celebration, however remotely, were parties to the unlawful explosion of the fireworks. Jenne v. Sutton, 43 N. J. Law, 257; Cooley on Torts, 127.

Black, J. Barclay, J., concurs in the result.

OPINION

Black, J.

-- This is a suit for damages brought by the plaintiff against the four defendants who had charge of and gave a pyrotechnic display in the city of Mexico on the night of the eleventh of November, 1884. The plaintiff was hit in the face by a sky rocket which broke his cheek bone and destroyed one eye. There was a verdict and judgment for defendants, to reverse which the plaintiff prosecutes this appeal.

The petition states that defendants negligently selected the veranda of the court house for the purpose of giving the display; and that they so carelessly and negligently handled and shot off the fire works, and permitted the same to be so negligently handled and shot off, that the plaintiff was struck by a sky rocket in the charge of and under their control.

From the record it appears various citizens of the city of Mexico concluded to celebrate the result of the presidential election of 1884. The programme adopted consisted of speaking, marching of political clubs, and a display of fireworks. The plaintiff, in company with his club, went to Mexico in the afternoon for the purpose of participating, and at night marched in the procession. He did not contribute to the purchase of the fireworks, and took no hand in the execution of that part of the programme; but he learned from a companion while on the way that there was to be such a display; and there is evidence from which it may be inferred that he had such knowledge before he started.

The defendants constituted a committee to take charge of the fireworks, and they selected the east veranda of the court house as the place from which to make the display. The veranda is eight feet wide, fifty feet long, and is reached by passing through windows from the second story. The court house is on the public square in the center of the business portion of the city. The square is surrounded by streets, and there are buildings from one or two blocks to the east, beyond which there is an open country and it was in this direction that the rockets were directed when fired from the troughs placed on the veranda. The rockets contained from an eighth to a half pound of powder, and would shoot with great speed, almost that of a gun. It is estimated that eight or ten thousand persons were present on the occasion in question.

The defendants stored the fireworks in a room in the second story of the court...

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