Dowell v. Guthrie

• Decision Date: 10 February 1890
• Citation: 99 Mo. 653,12 S.W. 900
• Parties: DOWELL v. GUTHRIE et al.
• Court: Missouri Supreme Court

12 S.W. 900

99 Mo. 653

DOWELL v. GUTHRIE et al.

Supreme Court of Missouri.

February 10, 1890.

NEGLIGENCE — DISCHARGE OF FIRE-WORKS.

1. The discharge of fire-works from a veranda in front of the second story of a building in the center of a public square, from troughs so arranged that the fire-works would pass over the assembled people, who were there for the purpose of witnessing the display, is not of itself an unlawful act, in the absence of a statute or ordinance making it so.

2. One who seeks to recover for personal injuries, unintentionally inflicted by defendants while engaged in a lawful business, has the burden of proving negligence throughout the trial.

3. In an action for personal injuries caused by the alleged negligent discharge of fire-works, evidence that the fire works were highly dangerous, that they were discharged by defendants, and that plaintiff was injured thereby, raises a presumption of negligence; and it is error to instruct that these facts alone are not sufficient to entitle plaintiff to recover.

4. Where there is evidence that a large quantity of fire-works was placed on the floor of a narrow veranda; that defendants, who had charge of the display, smoked cigars during the entire performance; that towards its close loose Roman candles were discovered on fire on the floor of the veranda, throwing out balls of fire in every direction; that these balls came in contact with the sky-rockets, one of which hit plaintiff, causing the injuries complained of, — it is error to instruct that, "unless the evidence proves to the reasonable satisfaction of the jury what caused it to be so ignited and discharged, * * * plaintiff cannot recover." It is enough to show that the rocket which caused the injury was put in motion by defendants' carelessness in handling or shooting off the fireworks, without pointing out the particular negligent act that caused the conflagration.

5. To warrant the giving of an instruction in plaintiff's behalf, which selects some of the leading facts, and asks the court to declare that such facts constitute negligence, the necessary inference from all the other evidence, viewed in its most favorable light for defendants, must be that they were negligent.

6. The mere presence of plaintiff at the display as a spectator, it appearing that he had nothing whatever to do with the discharge of the fireworks, does not make him a joint wrong-doer, or render him guilty of contributory negligence.

Appeal from circuit court, Pike county; E. M. HUGHES, Judge.

H. S. Priest and Geo. Robertson, for appellant. G. B. Macfarlane, for respondents.

BLACK, J.

This is a suit for damages brought by the plaintiff against the four defendants who had charge of and gave a pyro-technic display in the city of Mexico on the night of the 11th November, 1884. The plaintiff was hit in the face by a sky-rocket, which broke his cheek-bone and destroyed one eye. There was a verdict and judgment for defendants, to reverse which the plaintiff prosecutes this appeal.

The petition states that defendants negligently selected the veranda of the court-house for the purpose of giving the display; and that they so carelessly and negligently handled and shot off the fire-works, and permitted the same to be so negligently handled and shot off, that the plaintiff was struck by a sky-rocket in the charge of and under their control. From the record it appears that various citizens of the city of Mexico concluded to celebrate the result of the presidential election of 1884. The programme adopted consisted of speaking, marching of political clubs, and a display of fire-works. The plaintiff, in company with his club, went to Mexico in the afternoon for the purpose of participating, and at night marched in the procession. He did not contribute to the purchase of the fire-works, and took no hand in the execution of that part of the programme; but he learned from a companion, while on the way, that there was to be such a display, and there is evidence from which it may be inferred that he had such knowledge before he started. The defendants constituted a committee to take charge of the fire-works, and they selected the east veranda of the court-house as the place from which to make the display. The veranda is 8 feet wide, 50 feet long, and is reached by passing through windows from the second story. The court-house is on the public square in the center of the business portion of the city. The square is surrounded by streets, and there are buildings from one or two blocks to the east, beyond which there is an open country, and it was in this direction that the rockets were directed when fired from the troughs placed on the veranda. The rockets contained from an eighth to a half pound of powder, and would shoot with great speed, almost that of a gun. It is estimated that eight or ten thousand persons were present on the occasion in question. The defendants stored the fire-works in a room on the second story of the court-house, and took them out on the veranda from time to time, as needed. They would take out at one time a bundle of large rockets, from two to four or five boxes of darts or small rockets, and a quantity of Roman candles. The candles were placed in chairs and in the windows, and the darts or small rockets were kept in the boxes, but were placed on the floor next the wall of the building. The rockets, when fired from the troughs, threw back sparks of fire on the floor, covering a circle of two, three, or four feet. One witness says: "I will not say they did not go back as far as the wall of the court-house, nor to the fire-works that were on the floor." Towards the close of the exhibition, a bunch of candles were discovered on fire on the floor of the veranda, whirling around and throwing out balls of fire in every direction. These balls of fire came in contact with the rockets and darts, causing a conflagration, and the defendants retreated into the court-house. Several witnesses say they saw the sky-rocket which hit the plaintiff leave the veranda just as they saw the blaze begin at that place. The plaintiff was on the street, and about 200 feet from the court-house, when hit. The defendants used lighted cigars to ignite the fire-works, and nothing else. The evidence of defendants tended to show that the unexploded fire-works were placed away from the ends of the troughs. They do not know how the candles got on the floor, nor how they were ignited. Some other persons were on the veranda, against the orders of defendants, and some were there or in the windows by their consent.

1. The first question presented is whether the display of these fire-works was of itself an unlawful act. In Conklin v. Thompson, 29 Barb. 218, a boy on the 4th of July exploded a fire-cracker under the plaintiff's horse, while he was traveling upon the streets in a city, whereby the horse was frightened and died. The act, it is said, was wrongful, and the party committing it assumed the responsibility of all the bad consequences which ensued. In Jenne v. Sutton, 43 N. J. Law, 257, the plaintiff was hurt by the explosion of a bomb fired in the street of a city to signal the meeting of a political club; and it was said that the use of the street for such a purpose was illegal, and per se constituted a public nuisance, and that all persons concerned in doing the act, or who caused it to be done, were liable for all damages proximately resulting therefrom. Judge Cooley, in his treatise on Torts, citing these and other authorities, lays down the law in these words: "When one makes use of loaded weapons, he is responsible only as he might be for any negligent handling of dangerous machinery; that is to say, for a care proportionate to the danger of injury from it. The firing of guns for sport or exercise is not unlawful, if suitable place is chosen for the purpose; but in the streets of a city, or...