Bianki v. Greater Am. Exposition Co.

• Decision Date: 19 November 1902
• Citation: 3 Neb. [Unof.] 656,92 N.W. 615
• Parties: BIANKI v. GREATER AMERICAN EXPOSITION CO. ET AL.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 656

92 N.W. 615

BIANKI

v.GREATER AMERICAN EXPOSITION CO. ET AL.

Supreme Court of Nebraska.

Nov. 19, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Slabaugh, Judge.

“Not to be officially reported.”

Action by Ernest Bianki, by Anton Bianki, his next friend, against the Greater American Exposition Company and others. Judgment for defendants, and plaintiff brings error. Reversed.Weaver & Giller and Frank T. Ransom, for plaintiff in error.

W. D. McHugh, Smyth & Smith, Hamilton & Maxwell, and George E. Pritchett, for defendants in error.

BARNES, C.

This action was commenced in the district court of Douglas county for the plaintiff, who was at that time a minor of the age of five years, by his next friend, against the Greater American Exposition Company, Pain's Fireworks Company, Peter E. Iler, William Hayden, and James B. Kitchen, to recover damages alleged to have been sustained by him by reason of the improper management of the fireworks display or pyrotechnical exhibition given by the exposition company in July, 1899. Pain's Fireworks Company was not served with summons and has never appeared in the action. The defendants the Greater American Exposition Company, Peter E. Iler, William Hayden, and James B. Kitchen appeared in the action, and each filed a separate demurrer to the plaintiff's third amended petition. All of the demurrers were sustained. The plaintiff elected to stand upon his petition and refused to further plead. Judgment of dismissal was entered in favor of all of said defendants, and the plaintiff thereupon prosecuted error to this court.

It is alleged in the petition herein that the court erred in sustaining each of the several demurrers and in dismissing plaintiff's action as to each of the defendants. The petition in the court below charged that the defendants the Greater American Exposition Company and Pain's Fireworks Company were and are corporations, and that during all of the times set forth therein the Greater American Exposition Company was engaged in giving exhibitions at its grounds in the city of Omaha, and was engaged in the business of furnishing instruction and amusement for a consideration to all persons who might visit the grounds; that as a part of said amusement defendant Greater American Exposition Company employed, hired, and permitted the defendant Pain's Fireworks Company to shoot, throw, and propel from its said grounds fireworks, consisting of skyrockets, dynamite bombs, and other dangerous emplosives, up into the air to a great height, for the purpose of being then and there exploded; that the defendants Peter E. Iler, William Hayden, and James B. Kitchen were directors in said defendant corporation, the Greater American Exposition Company, and they each individually and personally, while acting as such directors, and while acting on the executive committee of the said last-named corporation, hired, employed, directed, and procured the defendant Pain's Fireworks Company to shoot, throw, and propel from said exposition grounds and premises fireworks, consisting of skyrockets, dynamite bombs, and other dangerous explosives, all of great and dangerous explosive power, up into the air, to be then and there exploded, which acts of said defendants were in violation of and contrary to an ordinance of the city of Omaha, a copy of which was attached to the petition, and marked “Exhibit A.” It was further alleged that all of said acts were done without the permission of the city of Omaha or the mayor thereof. The ordinance in question reads as follows: “Section 29. If any person shall unnecessarily discharge any firearm, or shoot off any firecracker or other lireworks, or shall light or throw any fire ball or cracker, in said city, without the permission of the mayor, such person so doing shall, on conviction thereof, be fined in any sum not exceeding $20. The city council may, by resolution, suspend the operation of the above provision of this section on the Fourth of July, or any other day of public rejoicing.” It was further alleged that all of said acts, aside from being a violation of said ordinance, were and constituted a continuing nuisance, and were a menace and injury to people residing or being near said exposition grounds. It was further alleged that said explosives were manufactured by said defendant Pain's Fireworks Company, and that some of said explosives were so carelessly, negligently, and improperly made and constructed that they failed to explode when so fired up into the air as aforesaid, and that some of said explosives were so negligently and carelessly fired, thrown, propelled, and handled, and permitted to be so carelessly and negligently thrown, fired, propelled, and handled, by defendants, that they fell in said unexploded condition outside of the grounds and premises of defendant Greater American Exposition Company, and upon the ground and premises of persons living in the immediate neighborhood, where they were carelessly and negligently permitted by defendants to remain; that to shoot, throw, and propel dynamite bombs and other explosives into the air, that were so improperly, carelessly, and negligently made and constructed, at such an angle as to cause them to fall outside of the grounds and premises aforesaid, and on the grounds and premises of citizens living adjacent to and in the neighborhood of said exposition grounds, and where they were liable to be picked up and handled by children, was careless, negligent, and a dangerous thing to do; and that said defendants were careless and negligent in so doing, and in permitting said acts and things to be so done and performed at said place as aforesaid. Plaintiff says that on the 22d day of July, 1899, he was living with his parents on the corner of Commercial and Ames avenues, and two blocks north of the exposition grounds aforesaid; that, while playing in his father's yard and on his father's premises on the evening of said date, he picked up one of said unexploded bombs aforesaid from said grounds and premises belonging to his father, and, being wholly unaware of any danger, and without any manner of negligence on the plaintiff's part, began to handle and examine the same, when suddenly, without any warning, said bomb exploded in plaintiff's left hand. The petition further set forth the effects of said explosion and the injuries caused to the plaintiff thereby, and concluded with a prayer for a judgment against the defendants for $10,000 and costs of suit.

The defendants having demurred separately, it will be necessary for us to examine the petition with reference to the liability of each of them, without regard to the liability of his codefendants. It is evident that the plaintiff framed his petition on the theory that the act of shooting off and exploding the fireworks and dynamite bombs described therein was unlawful, or a violation of law, and was a public nuisance per se. Therefore the first question for us to determine is whether the facts stated in the petition, in the manner therein set forth, show a violation of law or constitute a public nuisance. The petition charges that the American Exposition employed, hired, and permitted the...