Edling v. Kansas City Baseball & Exhibition Co.

• Decision Date: 01 June 1914
• Docket Number: No. 11194.,11194.
• Citation: 181 Mo. App. 327,168 S.W. 908
• Court: Missouri Court of Appeals
• Parties: EDLING v. KANSAS CITY BASEBALL & EXHIBITION CO.

168 S.W. 908

181 Mo. A. 327

EDLING v. KANSAS CITY BASEBALL & EXHIBITION CO.

No. 11194.

Kansas City Court of Appeals. Missouri.

June 1, 1914.

Rehearing Denied July 6, 1914.

1. APPEAL AND ERROR (§ 927)—EVIDENCE— DEMURRER—REVIEW.

A reviewing court, in considering a defendant's demurrer to the evidence, will accept the evidence of plaintiff where it apears reasonable, and adopt the conclusion supported by such evidence of plaintiff, though contrary to the evidence for defendant.

2. THEATERS AND SHOWS (§ 6)—BASEBALL PARK—LIABILITY OF OWNER.

An owner who maintains for profit a baseball park for professional games must exercise reasonable care to protect its patrons against injuries by foul balls, and, where it screens a part of the grand stand exposed to foul balls, it impliedly assures patrons paying for admission thereto that seats behind the screen are reasonably protected and it must exercise reasonable care to keep the screens free from defects, or it is guilty of negligence.

3. NEGLIGENCE (§ 65)—BREACH OF DUTY—ASSUMPTION OF RISK.

Where one owes a duty to another, the latter does not assume risks of injury created solely by a negligent breach of such duty.

4. THEATERS AND SHOWS (§ 6)—INJURY TO PATRONS—CONTRIBUTORY NEGLIGENCE.

One paying the entrance fee for a seat in the grand stand of a ball park is not guilty of contributory negligence, as a matter of law, in seating himself at a place where a batted ball may pass through a defective opening in the screen and hit him, where he had not observed that the screen was defective, for he could place some reliance on the implied assurance of the owner of the park that all the seats in the grand stand were reasonably safe, and the jury must determine whether he acted with reasonable care in selecting his seat and in remaining in it until injured by a foul ball passing through a defect in the screen.

5. THEATERS AND SHOWS (§ 6)—INJURY TO PATRONS—CONTRIBUTORY NEGLIGENCE.

Whether a patron at a baseball park witnessing a professional baseball game was negligent in not attempting to catch or dodge a foul ball passing through a defect in the screen protecting patrons held, under the evidence, for the jury.

6. THEATERS AND SHOWS (§ 6)—NEGLIGENCE —EVIDENCE.

In an action for injuries to a patron at a ball park witnessing a professional baseball game, for injury by being struck by a foul ball passing through a defective screen protecting the grand stand, evidence that the screen had been allowed to remain in a defective condition during that and the preceding season and that foul balls had passed through defective places into the grand stand was admissible to show that the owner of the park had maintained a defective screen for such a length of time that he had notice of the defects and could have repaired them.

7. EVIDENCE (§ 558)—EXPERT WITNESSES— CROSS-EXAMINATION.

A cross-examination of a physician by asking him questions as to the standing of medical authorities, and then by reading extracts from the authorities, and then asking him whether he agrees to the extracts, is proper.

8. EVIDENCE (§ 547)—OPINION EVIDENCE— EXPERT WITNESSES.

The opinion of an expert testifying as to the cause of a personal injury must be restricted to the question whether the injury complained of could have had its origin in the cause asserted.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Charles A. Edling against the Kansas City Baseball & Exhibition Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Hadley, Cooper & Neel, of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff was injured while witnessing a game of professional baseball in Kansas City, and sued defendant, the owner of the ball park, to recover damages resulting from the injury, which, he alleges, was caused by negligence of defendant. In addition to a general denial, the answer pleads defenses of assumed risk and contributory negligence. Verdict and judgment were for plaintiff in the sum of $3,500, and the cause is before us on the appeal of defendant.

The injury occurred May 31, 1911, during the progress of a game between the "Kansas City Blues," the club owned by defendant, and another club of the "American Association." The exhibition was public, and plaintiff had paid the regular fee of 50 cents charged by defendant for a seat in the grand stand, and had seated himself in that part behind the catcher's box, and which was screened in with chicken netting to protect its occupants from being struck by foul balls. The evidence of plaintiff tends to show that a foul ball passed through a large hole that had been worn in the netting, and struck plaintiff in the face, breaking his nose. The negligence alleged in the petition is:

"That the defendants negligently and carelessly permitted the screening on said grand stand to be and become old, rotten, worn, and defective, and negligently and carelessly permitted holes large enough to permit the passage of a baseball to be and remain in said screening in said grand stand; that the defendants knew of said old, worn, rotten, and dangerous condition of said screening and of said holes in said screening, or, by the exercise of ordinary care, could have known of same long prior to the accident to plaintiff hereinafter complained of, and in time, by the exercise of ordinary care, to have repaired the same prior to said accident; * * * that, while he was sitting in said grand stand as aforesaid, a foul ball was batted by one of the players participating in said game; that said ball went through said old, worn, and defective screening, as aforesaid, and through one of the holes heretofore described, and into the grand stand, striking plaintiff in the face with great force and violence, thus and thereby, then and there giving to plaintiff the following painful, permanent, and dangerous injuries, to wit," etc.

Plaintiff states he was watching the game, but had lost sight of the ball after it was struck by the batter, and did not know what had become of it until it struck him. The grand stand was extensive, capable of seating 6,000 or 7,000 spectators, and seats in it were not reserved. The ticket he purchased gave plaintiff the right to select any seat that was not already appropriated by some other spectator earlier to arrive. On his arrival he found the grand stand well filled, but with unoccupied seats in every section. He chose a seat about halfway back, and almost on a line with the pitcher's and catcher's boxes, in order that he might see the pitcher "curve the ball." About 700 balls are pitched during a game and in the preliminary practice of the two clubs, and an average of 10 per cent. of such balls are fouled by the batters in every possible direction. Many of these "fouls" fly directly back of the catcher, and some are projected with great force and speed. Officers and employés of defendant testified that the screens were maintained for the protection of the spectators; that these screens were new and in perfect condition; and that it was the custom of defendant to have them inspected daily, and repaired if found defective. On the other hand, the evidence of plaintiff tends to show that the ball which struck him passed through a hole almost a square foot in area, that there were many holes of various sizes, and through which a ball could pass, scattered over the screening, and the inference from all of the evidence of plaintiff is very strong that the screening was old, worn, and rotten, and had not been repaired in either that or the preceding season.

In the consideration of the demurrer to the evidence which defendant argues should have been given, we accept the evidence of plaintiff, since it appears reasonable, and reject the assertion of defendant's witnesses that the screen was new and in perfect condition. We must also ignore the suggestion that, since screening had to be provided which would not greatly interfere with the envisagement of the field by the spectator behind it, such screening necessarily lacked sufficient strength to turn the most...