Herrick v. Wixom

• Citation: 80 N.W. 117,121 Mich. 384
• Court: Supreme Court of Michigan
• Decision Date: 27 September 1899
• Parties: HERRICK v. WIXOM.

80 N.W. 117

121 Mich. 384

HERRICK v. WIXOM.

Supreme Court of Michigan

September 27, 1899

Error to circuit court, Shiawassee county; Peter F. Dodds, Judge.

Action by Frank Herrick against Martin V. B. Wixom. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Dean & Hooker (John T. McCurdy, of counsel), for appellant.

Watson & Chapman, for appellee.

MONTGOMERY J.

This is an action of trespass on the case, brought in the circuit court for the county of Shiawassee. Defendant was possessed of and managed a tent show or circus, September 18, 1897 which he exhibited from place to place, and on the afternoon of this day at Bancroft. Plaintiff went to the circus grounds on the afternoon of this day in company with his cousin. There is testimony to show that while there he and his cousin were invited by a son of the defendant, who had been selling tickets in the ticket wagon, to enter the tent with him, the entertainment being in progress. This plaintiff did, taking a seat on the lower tier of seats. The testimony on the part of defense tended to show that plaintiff was not invited into the show, and that the son of defendant had no authority to invite him in. There was also evidence that plaintiff had attended a similar exhibition given by defendant the spring before. A part or feature of the entertainment consisted in the ignition and explosion of a giant firecracker attached to a pipe set in an upright position in one of the show rings. This was done by one of the clowns. There is testimony to show that plaintiff sat 30 or 40 feet from the place where the cracker was exploded, but when the same was exploded a part of the firecracker flew and struck plaintiff in the eye, putting it out, whereby he lost the sight and use of the eye. For this injury action was brought against defendant for damages as a result of defendant's negligence in permitting a dangerous explosive to be used in a dangerous manner, which subjected those present to hazard and risk of injury. Upon the trial of the cause a verdict of no cause for action was rendered, and judgment for the defendant entered accordingly. Plaintiff brings error.

Edward Hutchins was a witness for the plaintiff. He testified to the explosion, and that plaintiff sat right beside him at the time, and, in answer to the question, 'As soon as you heard the explosion, what took place?' replied, 'Mr Herrick spoke to me and said, 'Ed., that put my eye out.' I looked over at him.' On motion of the defendant's counsel, that portion of the statement of the plaintiff as to what it was that hurt him was struck out, Mr Dean, counsel for the plaintiff, stated previous to this ruling, 'For the purposes of the case, it may be sufficient to say that there was an exclamation of pain immediately following the explosion.' In view of this statement, we do not think that plaintiff's counsel are in position to complain that the statement as to the cause of the injury was struck out. In view of a new trial, we may say that we think the statement a part of the res gestae, and admissible.

The circuit judge charged the jury as follows: 'The negligence charged in this case is, gentlemen, that Mr. Wixom exploded a firecracker, of the dimensions that the plaintiff claims this firecracker was, in the inside of this tent, and in the presence of his audience. They claim that was negligence. And that is the question for you to determine under the evidence, and under the rules of law that I have given you and that I shall give you hereafter. Now, you must further find, in order that the plaintiff recover, that the plaintiff was in the tent, where he was injured, by the invitation of some person having authority to allow him to go in there. If he was a mere trespasser, who forced his way in, then the defendant owed him no duty that would enable him to recover under the declaration and proofs in this case; but, in connection...