Dowell v. Guthrie

Decision Date19 June 1893
Citation22 S.W. 893,116 Mo. 646
PartiesDowell, Appellant, v. Guthrie et al
CourtMissouri Supreme Court

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

Affirmed.

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 streets immediately surrounding them were thronged with men, women and children. The law therefore, out of regard for human life and safety, demanded great care of them. They were bound to exercise more than ordinary care. Whitaker's Smith on Negligence, 231, et seq.; Thompson on Negligence, 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. 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 Negligence, p. 420; Railway Co. v. Anderson, 39 Am. Rep. 787; Daughtery v. Railroad, 9 Mo.App. 478; Breen v. Railroad, 4 Am. St. Rep. 450; Morgan v. Cox, supra; 2 Thompson on Negligence, 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 Negligence, 1235, sec. 8; Tally v. Ayer, 3 Sneed (Tenn.) 677. (b) Evidence of defendants' negligence need not be direct and positive. The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of defendants' and of resulting injury to himself. Having done this he is entitled to recover, unless the defendants produce evidence sufficient to rebut the presumption. Rosenfield v. Arnold, 44 Minn. 395; Moon v. Goedel, 34 N.Y. 527; Summonton v. Loring, 68 Me. 164; Achtenhagen v. Watertown, 18 Wis. 331; Marlatt v. Levee & Co., 10 La. 583. And then the burden is cast upon the defendants to show that they were not guilty of negligence for which they are charged. Tradwell v. Whittier, 80 Cal. 575; Reported in 14 Am. St. Rep. 175. (3) 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 veranda occurred. This was also the evidence of the 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., as well as placing explosives in near proximity to fire. Jenne v. Sutton, 43 N. J. L. 257; Conklin v. Thompson, 29 Barb. 218. (4) Instruction numbered six, given at defendants' request, is error. First, because it puts the burden on the plaintiff to show by what particular act the injury was caused, and second, because it destroys the plaintiff's prima facie case made by showing that he was injured by a rocket coming from and under the control of defendants. It is in effect the same instruction given at defendants' request in the former trial of this case and condemned by this court in the first appeal. (5) The proof in this case shows one of two things, either that the rocket which injured plaintiff was shot direct from the veranda of the court house into the crowd of people on Harper's corner or that it caught fire from fire in the control of defendants and was thus shot into the crowd of people.

Elijah Robinson for respondents.

(1) On a former appeal it was expressly held that the display of fireworks, under the circumstances and in the manner detailed in evidence, was not unlawful. 99 Mo. 653. That being true, the defendants owed to plaintiff the duty of exercising such care as a prudent and cautious person would exercise under the same or similar circumstances. Whittaker's Smith on Negligence, 45; Frick v. Railroad, 5 Mo.App. 441; Richards v. Sperry, 2 Wis. 165; Wharton on Negligence, sec. 1 and note; Whittaker's Smith on Negligence, 22, note; Railroad v. Jones, 95 U.S. 441; 17 Central Law Journal, 251. The instructions given by the court at the instance of plaintiff present the case on this theory, and are certainly as favorable to him as the law would warrant, if not more so. (2) Plaintiff and defendants were participating a common enterprise; and, although engaged in the performance of different parts of the program, they were all working with a common purpose and to the same end. Each was, by his presence and acquiescence, if not by actual and positive word and deed, countenancing, encouraging and advising the acts of the other. Under such circumstances, plaintiff cannot recover without showing actual negligence on the part of the defendants. Cooley on Torts, 127; Jenne v. Sutton, 43 N. J. Law, 257. (3) The fact that the plaintiff was injured by the sky rocket under the control and in charge of the defendants, did not make a prima facie case and shift the burden of proof on to defendants, as contended by plaintiff in the first and second paragraphs of the second subdivision of his brief. See former opinion of this court in this case, 99 Mo. 653. Losse v. Buchahan, 51 N.Y. 576, and cases there cited; Tourtelott v. Rosebrook, 11 Metcalf, 46; Hinds v. Barton, 25 N.Y. 544; Cook v. Transportation Co., 1 Denio, 91; Rockwood v. Wilson, 11 Cush. 221; Railroad v. Napheys, 90 Penn. St. 135; Nitro-glycerine Case, 15 Wallace, 524; 2 Thompson on Negligence, 1227; Marshall v. Wellwood, 38 N. J. Law, 339. (4) Where the judgment of sensible men would arrive at different conclusions on the question of negligence, it is a matter for the consideration of the jury. Bolen v. Kansas City, 32 Mo.App. 8; Corrister v. Railroad, 25 Mo.App. 619; Hume v. Railroad, 92 Mo. 440; Tabler v. Railroad, 93 Mo. 79; Barry v. Railroad, 98 Mo. 62; Kinney v. Springfield, 35 Mo.App. 97; Ball v. Independence, 44 Mo.App. 469.

Brace J. Macfarlane, J., not sitting.

OPINION

In Banc

Brace, J. --

On the evening of the eleventh of November, 1884, at a celebration of the political victory achieved by the Democratic party in the general election of that year, the plaintiff was struck and seriously injured by a sky-rocket accidentally discharged from the veranda of the court house in the city of Mexico; and this suit is brought against the defendants, who had charge of the pyrotechnic display on that occasion, to recover damages for the plaintiff's injuries. The case has been here before and is reported in 99 Mo. 653, 12 S.W. 900. The evidence upon the retrial was substantially the same as before and the case need not be re-stated at length. The jury again found for the defendants and the plaintiff appeals.

The main issue was presented to the jury by the following instructions given for the plaintiff.

"1. The court instructs the jury that a person who takes upon himself the business of exploding fireworks must exercise care, such care as is proportioned to the dangerous character of the explosives used and the danger to be apprehended from the use of them, and the only question in this case is, whether the defendants used that care and caution in handling, managing and discharging the explosives that cautious and prudent persons would have used under the circumstances; and the court instructs the jury that from the facts that plaintiff was injured, that the defendants had control of and did handle and discharge the fireworks, and that they were dangerous in their character, and if the plaintiff was struck by a missile from their control, then the jury may infer that want of due care and caution on part of the defendants which they were bound to exercise in the discharge of their undertaking.

"And the court further instructs the jury that it is not incumbent upon the plaintiff to show by what particular negligent act the missile was set off that caused his injury; that it is not necessary to a verdict for the plaintiff that the jury should be able to settle in their minds what particular act caused the injury; that it is enough for the jury to believe from all the evidence in the case that the rocket which caused the injury was put in motion by reason of the want of due care and caution on the part of defendants or some of them or some one acting with them in the handling, managing and shooting off the fire works; and if the jury believe from the evidence in the case that the defendants or those jointly assisting them were remiss in the handling, managing and shooting off the said explosives, and that by reason thereof the plaintiff was struck and injured, then the defendants are liable and the jury will return a verdict in favor of plaintiff in the sum not to exceed, however, the amount of fifty thousand dollars.

"2. In determining whether the defendants were guilty of negligence in the keeping, management, control and discharge of the fireworks, the jury should take into consideration the...

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