Curtis v. Portland Baseball Club

• Decision Date: 25 June 1929
• Citation: 279 P. 277,130 Or. 93
• Parties: CURTIS v. PORTLAND BASEBALL CLUB.
• Court: Oregon Supreme Court

279 P. 277

130 Or. 93

CURTIS v. PORTLAND BASEBALL CLUB.

Supreme Court of Oregon

June 25, 1929

Department 2.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by George Curtis against the Portland Baseball Club. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

John S. Coke, of Portland (Griffith, Peck & Coke, of Portland, on the brief), for appellant.

Frank J. Lonergan, of Portland (Lonergan & Wagner and Neal R Crounse, all of Portland, on the brief), for respondent.

BELT J.

Plaintiff seeks to recover damages for personal injuries sustained while watching a professional baseball game at Portland, Or., on Decoration Day, 1925. He testified that "three reserved seats back of the screen" were purchased for $3.30 and that the "usher conducted me to the three seats." His father and daughter accompanied him. There is a dispute in the testimony as to whether plaintiff at time of injury was back of or beyond that portion of the grand stand which was screened. He testified however, that the screen was directly in front of him and was about flush with his seat. His seat was about 60 feet from the batter's box and approximately 10 feet south of a line between third base and home plate. It was on the second row, about 6 feet behind the screen, and on the extreme northern end. The screen covering the front of the grand stand was 40 feet high and 150 feet long. Plaintiff says a foul-tipped ball, which had been pitched with great speed curved around the end of the screen and struck him on the nose, inflicting serious and permanent injuries.

The defendant baseball club is charged, in substance, with negligence in failing to furnish him with a reasonably safe place where he could watch the game. Defendant denied the charge of negligence, and alleged, as affirmative defenses contributory negligence and assumption of risk. Verdict and judgment were had for plaintiff in the sum of $3,000. Defendant appeals, asserting, among other things, that it was entitled to a nonsuit or a directed verdict.

In view of the demurrer to the evidence, the statement of the case has been made in the light most favorable to the plaintiff. We pass the contention of defendant that, on the morning in question, no reserved seats were sold, and that the admission price to the grand stand was 75 cents. It must be assumed that plaintiff purchased a particular reserved seat and that he was injured while sitting behind the screen and in the manner claimed by him.

Wherein was defendant derelict in its duty? What did it fail to do which ought to have been done for the reasonable protection and safety of plaintiff who paid for a seat in the grand stand behind the screen? Under the law, defendant was obliged to exercise reasonable care and diligence commensurate with the danger involved, to protect its patrons from injury. Plaintiff, in the absence of notice to the contrary, had the right to assume that defendant would exercise care in maintaining the premises in a reasonably safe condition. Being in the business of providing public entertainment for profit, the defendant was required to use due care to protect its patrons from injury. It was not, however, an insurer of their safety. It was required to use only that degree of care exercised by persons of ordinary prudence and caution engaged in similar business. It was not bound to guard against highly improbable dangers or perils.

Considering the location of plaintiff's seat with reference to the screen and the batter's box, it was, indeed, a most unusual and unexpected accident. There is no contention that the ball came through the screen. So far as the record discloses, the screen was in a good condition of repair. We have not before us a case wherein a patron was injured by reason of a defective screen. Edling v. Kansas City Baseball & Exhibition Co., 181 Mo.App. 327, 168 S.W 908. Neither is it one where the person injured was sitting in the bleachers or outside the screen. Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86. It is a case where the injury sustained was due to a foul ball which performed the remarkable feat of taking a sharp inshoot around the end of the screen and striking plaintiff, a strong and vigorous young man, on the nose. We inquire, Could defendant, in the exercise of reasonable care, anticipate that such a thing would come to pass? It...