12 S.W. 900 (Mo. 1890), Dowell v. Guthrie

Citation:12 S.W. 900, 99 Mo. 653
Opinion Judge:Black, J.
Party Name:Dowell, Appellant, v. Guthrie et al
Attorney:George Robertson and H. S. Priest for appellant. G. B. Macfarlane for respondents.
Judge Panel:Black, J. Barclay, J., concurs in the result.
Case Date:February 10, 1890
Court:Supreme Court of Missouri
 
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Page 900

12 S.W. 900 (Mo. 1890)

99 Mo. 653

Dowell, Appellant,

v.

Guthrie et al

Supreme Court of Missouri

February 10, 1890

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...

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