Edling v. Kansas City Baseball & Exhibition Co.

• Decision Date: 01 June 1914
• Citation: 168 S.W. 908,181 Mo.App. 327
• Parties: CHARLES A. EDLING, Respondent, v. KANSAS CITY BASEBALL & EXHIBITION COMPANY, a Corporation, Appellant
• Court: Kansas Court of Appeals

168 S.W. 908

181 Mo.App. 327

CHARLES A. EDLING, Respondent, v. KANSAS CITY BASEBALL & EXHIBITION COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

June 1, 1914

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

AFFIRMED.

Judgment affirmed.

Hadley Cooper & Neel for appellant.

(1) The court erred in overruling the defendants' objection to the question asked the witness, Doctor Manko, as follows "Q. Now, where the bone in the nose is involved in the part where you have spoken of the bone of the nose itself what is necessary to do when polipi are taken out? Russ v. Railway Co., 112 Mo. 48; Benjamin v. St. Ry. Co., 50 Mo.App. 610. (2) The court erred in overruling defendants' objection to counsel for the plaintiff reading to the jury from a medical book. 17 Cyc. p. 270; Bloomington v. Schrock, 110 Ill. 219, 51 Am. Rep. 679; State v. Peterson, 110 Ia. 647; 82 N.W. 329; Davis v. State, 38 Md. 15; Com. v. Brown, 121 Mass. 69; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Fox v. Pew. W. L. Works, 84 Mich. 681; Hall v. Murdock, 114 Mich. 239. (3) The court erred in sustaining the objection of plaintiff's counsel to the question asked by defendants' counsel of the expert witness, Doctor Trueman. Millirons v. Railway Co., 162 S.W. 1072.

Brewster, Kelly, Brewster & Buchholz for respondent.

OPINION

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 $ 3500 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 fifty cents charged by defendant for a seat in the grandstand 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 grandstand 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 grandstand; 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 grandstand 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 grandstand, 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 grandstand was extensive, capable of seating 6000 or 7000 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 grandstand well filled but with unoccupied seats in every section. He chose a seat about half way back and almost on a line with the pitchers' and catchers' 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 ten 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 employees 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 forcible of the foul balls and, consequently, that the injury should be attributed to a risk not avoidable by the exercise of reasonable care. The evidence supports the opposite conclusion which we must adopt, that chicken netting in good repair and of the mesh used by defendant, would stop all batted balls and that the ball in controversy did not force its way through a sound screen, but passed through an old hole which any sort of diligence and care would have discovered and repaired.

One of the natural risks encountered by spectators of a professional baseball game is that of being struck by a fouled ball, and it goes without saying that defendant was not required by law and did not undertake to insure the patrons of the screened-in portions of its grandstand immunity against injury from such source, but being in the business of providing a public entertainment for profit, defendant was bound to exercise reasonable care to protect its patrons against such injuries. [King v. Ringling, 145 Mo.App. 285, 130 S.W. 482; Murrell v. Smith, 152 Mo.App. 95, 133 S.W. 76; Crane v. Exhibition Co., 168 Mo.App. 301, 153 S.W. 1076.] As we observed in the case last cited, which was a suit against the present defendant for an injury sustained by a patron who seated himself in the grandstand outside of the screened-in part, "the facts that the general public is invited to attend these games, that hard balls are thrown and batted with great force and swiftness, and that such balls often go in the direction of the spectators, we think the duty of defendants towards their patrons included that of providing seats protected by screening from wildly thrown or foul balls for the use of patrons who desired such protection."

Defendant recognized this duty by screening that part of the grandstand most exposed to the battery of foul balls and impliedly assured spectators who paid for admission to the grandstand that seats behind the screen were reasonably protected. None of those seats was closed to patrons and when plaintiff entered the grandstand he was invited to seat himself where he pleased with the assurance that reasonable care had been observed for his protection. It was the duty of defendant to exercise reasonable care to keep the screen free from defects and if it allowed it to become old, rotten and perforated with holes larger than a ball, the jury were entitled to infer that it did not properly perform that duty, but was guilty of negligence.

In seating himself where he did plaintiff did not assume the risks resulting from such negligence. The courts of this State have always adhered to...