Easler v. Downie Amusement Co., Inc.

• Decision Date: 03 July 1926
• Citation: 133 A. 905
• Parties: EASLER v. DOWNIE AMUSEMENT CO., Inc. (two cases).
• Court: Maine Supreme Court

133 A. 905

EASLER

v. DOWNIE AMUSEMENT CO., Inc. (two cases).

Supreme Judicial Court of Maine.

July 3, 1926.

On Motion for New Trial from Supreme Judicial Court, Somerset County, at Law.

Actions by Percy F. Easier and by Jasper M. Easier, by his next friend, against the Downie Amusement Company, Inc. Verdict for plaintiff in each case, and defendant moves for new trials. Motions overruled.

Argued before WILSON, C. J., and DUNN, MORRILL, STURGIS, and BASSETT, JJ.

Gower & Shumway, of Skowhegan, for plaintiffs.

Fred F. Lawrence, of Portland, for defendant.

STURGIS, J. The defendant corporation exhibited its circus, known as the Walter L. Mains Circus, at Skowhegan, July 11, 1924. Just before the evening performance, while the plaintiff Jasper M. Easier, was watching a ball game played by some of the circus employees, his right arm was broken by a stake which slipped from one of the players' hands. These actions, brought by Jasper M. Easier by his next friend to recover for his injuries, and by Percy F. Easier, his father, to recover for expenses incurred, are before this court on general motions.

The circus grounds were leased of a local owner; and there is abundant evidence to justify the conclusion that the injured plaintiff and some of the players, including the one who was using the stake which hit the plaintiff, were within the leasehold limits.

The players were chiefly colored cookhouse employees who had finished their day's work and were off duty. The ball game was not a scheduled attraction, but recreation indulged in outside of the hours of the players' employment. Liability, therefore, cannot attach to this defendant under the doctrine of respondeat superior. Harrington v. Border City Manufacturing Co., 240 Mass. 170, 132 N. E. 721, 18 A. L. R. 610; Karahleos v. Dillingham, 119 Me. 165, 109 A. 815; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336.

The duties and responsibilities of the proprietors of a public exhibition, however, are measured by a different rule. The defendant, having invited the public to its circus grounds, was chargeable with the duty of using reasonable care, not only to see that the premises which it occupied were in a reasonably safe condition, but also that they were kept so; and, if games and sports of a character to jeopardize the safety of those who were present at the defendant's invitation were permitted, the duty rested upon the latter to take due precaution to guard against Injury to the spectators. Thornton v. Agricultural Society, 97 Me. 108, 53 A. 979, 94 Am. St Rep. 488; Graff am v. Saco Grange Patrons of Husbandry, 112 Me. 508, 92 A. 649, L. R. A. 1915C, 632; Hoyt v. Fair Association, 121 Me. 461, 118 A. 290. Its duty was not merely a passive one of refraining from authorizing such games and sports. It had an active duty to use reasonable care to prevent the same, or see to it that due precautions were taken. Higgins v. Agricultural Society, 100 Me. 565, 62 A. 708, 3 L. R. A. (N. S.) 1132; Lusk v. Peck, 132 App. Div. 426, 116 N. Y. S. 1051.

The plaintiff Jasper M. Easier came to the circus grounds early in the afternoon, visited the side shows, bought peanuts, watched the watering of the elephants and camels, and, while waiting for his parents' arrival for supper on the grounds and attendance at the evening performance, boylike moved about as curiosity directed, and the things which interest the average boy attracted and allured him. It is not alone the performance in the big tent, nor the side shows of the midway, which interest and allure the patrons of the circus. Adults, as well as children, view with interest the machinery, equipment, and operation of the circus outride the tents and to them all this is part of the exhibition. It is "all things to all men." This is common knowledge to all men, and born of recollection to most of us. We are of opinion that the management of this circus must be presumed to share in this knowledge, and, except as they bar the public from particular parts of the grounds or prohibit entrance thereon outside of stated hours, to have intended to include within their general invitation to the public access and view of all parts of the circus grounds between shows, as well as during the regular performances. The evidence justifies such a finding by the jury and brings the plaintiff within the rule of invitee laid down in Sweeny v. Old Colony & Newport Ry. Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644, approved and adopted in Hoyt v. Fair Association, supra.

Was the duty owed to this boy plaintiff violated by this defendant? Twenty or 30 feet from the main tent, back from its entrance to be sure, but in plain view, these employees of the defendant began to...