Base Ball Co. v. Eno

Decision Date10 March 1925
Docket Number18528
Citation112 Ohio St. 175,147 N.E. 86
PartiesThe Cincinnati Base Ball Club Co. v. Eno.
CourtOhio Supreme Court

Negligence - Exercise of care by owner of premises toward invitees - Question for jury - Negligence of baseball club practicing before unscreened grand stand - Contributory negligence by spectator sitting in unscreened section.

1. One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitees.

2. Whether the management of a baseball club company, in permitting practicing by its baseball team in close proximity to the unscreened section of the grand stand between the two games of a "double header," is guilty of negligence, or whether a spectator sitting in the unscreened portion of the grand stand at the time of the practicing is guilty of contributory negligence, is a question of fact for the jury.

The defendant in error, Victoria Eno, who was plaintiff below filed her petition in the court of common pleas of Hamilton county, Ohio, alleging in substance that the defendant company was on or about the 30th day of July, 1921, the lessee of & baseball park in the city of Cincinnati, Hamilton county, Ohio, and was on that day engaged in the business of presenting public exhibitions of professional baseball, as a member of a league of baseball clubs known as "The National League," composed of professional clubs playing games of baseball according to schedule in various cities that the games assigned to Cincinnati were and are played in the defendant's park, under its management and control, for which exhibitions spectators are required to pay admission fees; that on or about the 30th day of July, 1921, plaintiff, in company with a friend, attended a "double header" exhibition between the New York club and the defendant club; that the seats occupied by plaintiff and her friend were reserved seats in box No. 151 on the south side of the grand stand, in such park; that during the intermission between games one of the defendant's players in batting practice batted a thrown baseball, which struck plaintiff in the face on the left side of her jaw; that the player was batting from a point near the grand stand where plaintiff was seated, and not from the diamond; that defendant was negligent in not protecting spectators by screening or otherwise against injuries from batted balls and in that it permitted its players to bat balls from such point; and that the negligence of defendant was the proximate cause of plaintiff's injuries.

The defendant below in its answer admitted that it was a corporation organized for the purpose of conducting baseball games for profit, and that upon the day set forth in the petition a "double header" baseball game was played in defendant's park, but denied the injuries of the plaintiff and every allegation in the petition not expressly admitted.

As a second defense, defendant set up that batting practice was an established part of the professional baseball exhibition given at its park; that batting practice was part of the exhibition given at the park on said 30th day of July, 1921 that there are certain natural perils and dangers incident to an exhibition of professional baseball which are not within the power of the players to control; that spectators at professional baseball exhibitions, unless they take seats in a protected area of the grand stand, subject themselves to and assume the perils of the plays and actions on the playing field; that for the accommodation and protection of those of its patrons who desired to be protected from such perils, defendant had, prior to the 30th day of July, 1921, erected a screen of woven wire netting in front of certain sections of seats of the grand stand in defendant's park, which screen was in place on the said 30th day of July, 1921, and available to plaintiff. As its second defense the defendant further alleged that if the plaintiff was injured at the time and place alleged in her petition, it was because plaintiff elected to take a seat in an unscreened section of the grand stand, where she knew, or in the exercise of ordinary care should have known, that she would be exposed to the perils naturally arising from the exhibition, and that therefore she assumed the risk resulting therefrom.

As a third defense, the defendant alleged that the plaintiff was guilty of contributory negligence, which was the proximate cause of her alleged injuries.

At the end of the testimony the court sustained a motion made by defendant for an instructed verdict and instructed the jury to return a verdict for the defendant. Upon the verdict so rendered, judgment was entered. The judgment of the trial court was reversed in the Court of Appeals for Hamilton county, to which reversal of judgment error is here prosecuted; the case coming into this court upon allowance of motion to certify the record.

Messrs. Pogue, Hoffheimer & Pogue, and Mr. J. A. Culbertson, for plaintiff in error.

Mr. Louis B. Sawyer, and Mr. Jas. P. Goodenough, for defendant in error.

ALLEN J.

The plaintiff in error claims that the Court of Appeals erred when it reversed the judgment entered in the trial court for the defendant; that is, it claims that the management of a baseball game is not liable to a spectator at a ball game for injuries from batted balls inflicted in the intermission between two set games, commonly called a "double header"; and that such a spectator who chooses a seat in the unscreened portion of the grand stand is guilty of contributory negligence as matter of law in case any injury is incurred from balls so batted.

Its claim is that the facts as given establish no breach of duty upon the part of the defendant and do establish contributory negligence upon the part of plaintiff below, as a matter of law, in the fact that she sat in an unprotected part of the grand stand at the time when the injury was sustained.

The plaintiff in error cites certain cases in support of its contention, which embody all of the authority in this country upon the precise question. They are as follows:

Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. App., 301, 153 S. W., 1076. In this case the plaintiff had purchased a ticket which entitled him to a sea.t in the grand stand, protected from foul balls and wild throws by a wire netting; but, instead of going there, he voluntarily chose to take a seat which was unprotected. During the progress of the game he was struck by a foul ball and injured. The plaintiff sued for damages, alleging that the management was negligent in not screening in the whole of the grand stand, and that such negligence was the proximate cause of his injury. The trial court declared that as a matter of law plaintiff was not entitled to recover. The court of last resort held that the plaintiff's contributory negligence was apparent and indisputable, and also held that where one attending a baseball game is offered a choice of two positions, one of which is less safe than the other, he cannot be said to be in the exercise of reasonable care if, with full knowledge of the risks and dangers, he chooses the more dangerous place.

In Wells v. Minneapolis Baseball & Athletic...

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