Bernier v. Woodstock Agr. Soc'y

• Decision Date: 10 November 1914
• Court: Connecticut Supreme Court
• Parties: BERNIER v. WOODSTOCK AGR. SOCIETY.

92 A. 160

88 Conn. 658

BERNIER

v. WOODSTOCK AGR. SOCIETY.

Supreme Court of Errors of Connecticut.

Nov. 10, 1914.

Appeal from Superior Court, Windham County; Milton A. Shumway, Judge.

Action by Joseph G. Bernier, administrator, against the Woodstock Agricultural Society, for death of intestate. From a judgment on a verdict for defendant, plaintiff appeals. Affirmed.

Eric H. Johnson and Ernest C. Morse, both of Putnam, for appellant.

Charles E. Searls and Charles L. Torrey, both of Putnam, for appellee.

THAYER, J. The plaintiff upon the trial claimed that the evidence showed that while his intestate, Joseph G. Bernier, Jr., a boy 12 years and 9 months of age, was witnessing a balloon ascension upon the defendant's fair grounds, a rope attached to the balloon as it ascended became wound around the boy's leg, carrying him up for the distance of 300 feet into the air, whence he fell to the ground and was killed. He claimed, also as charged in the complaint, that this was caused by the defendant's negligence in failing to furnish spectators, including the intestate, a safe place to view the ascension; in failing to keep its grounds in a safe condition; in failing to place sufficient barriers or ropes to keep spectators at a safe distance; in allowing the person in charge of the ascension to request spectators to assist in the ascension; in allowing ropes attached to the balloon to lie under or near the spectators' feet; in failing to adequately police the vicinity of the ascension; in permitting spectators, including the intestate, to approach so near the balloon that harm might come to them; in failing to cause a warning sufficient to apprise them of their danger to be given to the spectators; and in falling to use reasonable care in the selection of a suitable person to conduct the ascension. That the boy was carried up by the balloon and fell and was killed was not in dispute. The defendant claimed that as the balloon was about to rise he seized the rope and wound it around his wrist with the expressed purpose of going up a little way with the balloon; that his injury and death were thus due to his own negligence; that the defendant had used due care to provide a safe place for the ascension and to employ a capable and suitable person to conduct it; that the latter was an independent contractor engaged to make the ascension, using his own means and servants without interference by the defendant; that the ascension was not intrinsically nor obviously dangerous to spectators; that the defendant was not guilty of any negligence, and was not liable for injuries resulting from the personal negligence of the independent contractor.

The appellant's chief reasons of appeal relate to certain instructions given to the jury respecting the defendant's liability for the negligent acts, if any, of the person who conducted the ascension, should they find him to be, as claimed by the defendant, an independent contractor. He also assigned as error the court's findings of fact stated in the sixty-fifth paragraph of its finding, which reads as follows:

"65. Upon the trial of the case in the superior court for Windham county to a jury, the defendant requested the court to direct the jury in making up its verdict to answer the following three questions, and the court, in accordance with said request, directed the jury in said trial to answer the following three questions in making up its verdict, to wit:

"'1. Was the negligent conduct of Joseph George Bernier, Jr., the direct and probable cause of his own death?

"'2. Was the person engaged by the defendant to furnish and who did furnish the balloon ascension at which Joseph George Bernier, Jr., was killed an independent contractor in furnishing such ascension?

"'3. Did the performance of the contract for such balloon ascension, if done in a careful and proper manner, obviously expose the plaintiff's decedent, or other spectators, to probable injury therefrom?'

"Said questions were submitted to the jury as aforesaid, and were unanimously answered by the jury as follows:

"'1. Was the negligent conduct of Joseph George Bernier, Jr., the direct and probable cause of his death?' Answer: 'Yes.'

'2. Was the person engaged by the defendant to furnish and who did furnish the balloon ascension at which Joseph George Bernier, Jr., was killed an independent contractor in furnishing such ascension?' Answer: 'Yes.'

"'3. Did the performance of the contract for such balloon ascension, if done in a careful and proper manner, obviously expose the plaintiff's decedent or other spectators to probable injury therefrom?' Answer: 'No.'"

He asks us in his brief and argument to correct the finding by eliminating from it this paragraph. The...