Cates v. Cincinnati Exhibition Co.

• Decision Date: 01 February 1939
• Docket Number: 755.
• Citation: 1 S.E.2d 131,215 N.C. 64
• Parties: CATES v. CINCINNATI EXHIBITION CO. et al.
• Court: North Carolina Supreme Court

1 S.E.2d 131

215 N.C. 64

CATES v. CINCINNATI EXHIBITION CO. et al.

No. 755.

Supreme Court of North Carolina

February 1, 1939

Hedrick & Hall, of Durham, for appellant.

W C. Purcell and Fuller, Reade, Umstead & Fuller, all of Durham, for appellee Cincinnati Exhibition Co.

Claude V. Jones, of Durham, for appellee City of Durham.

SCHENCK Justice.

This is an action to recover damages for personal injury alleged to have been negligently inflicted.

There was evidence tending to show that the City of Durham owned a baseball field known as El Toro Park, and that it leased said park to the Cincinnati Exhibition Company for the purpose of having games of baseball played therein between the Durham Baseball Club, owned by the Exhibition Company, and other clubs of the Piedmont League, during the season of 1936; that on the night of September 6, the Durham Baseball Club was playing a game of baseball with another baseball club of the Piedmont League upon said El Toro Park; that the plaintiff bought a ticket to and attended said game, having taken a seat in the bleacher seats which were parallel to and in close proximity of third base; that while watching the game from said bleacher seats plaintiff was struck in the eye by a foul ball and was thereby injured.

All of the evidence tends to show that there was no roof over the bleacher seats and no wire in front thereof, but that the reserved seats immediately behind the home plate were covered by roof and protected in front by wire; that the price charged for the bleacher seats was 40 cents and for reserved seats 65 cents; that the plaintiff voluntarily chose the bleacher seats, notwithstanding there were vacant reserved seats that he could have had, had he elected to pay therefor that the plaintiff was familiar with the game of baseball and knew that foul balls were frequently knocked in most any direction, including the vicinity of third base, and that the plaintiff had often attended baseball games in El Toro Park and was familiar with the seating arrangements thereof, and knew that he could have purchased reserved seats protected by a roof and wire if he elected so to do; that while plaintiff was seated on said bleacher seats a foul ball was knocked by the batter which went above the rays of the lights of the park and out of the sight of the plaintiff, and fell in the area of the bleacher seats, striking the plaintiff.

When the plaintiff had introduced his evidence and rested his case, the defendants and each of them moved to dismiss the action, which motion was allowed, and judgment as in case of nonsuit entered. C.S. § 567. To the ruling of the Court the plaintiff reserved exception, and appealed.

A determinative question is presented at the outset of this appeal, namely: Is the failure to place a roof over the bleacher seats, or a failure to erect wire in front thereof or failure to furnish any other protection thereto from thrown or batted balls, when seats so protected are furnished elsewhere and are known to be available by the occupants of the bleacher seats, negligence on the part of those responsible for the operation and maintenance of a baseball field or park? We are constrained to answer in the negative.

"It has been frequently held that one who invites the public to places of amusement, such as theaters, shows, and exhibitions, must exercise a high degree of care for...