Ivory v. Cincinnati Baseball Club Co.

Decision Date22 May 1939
Citation62 Ohio App. 514,24 N.E.2d 837
CourtOhio Court of Appeals

August A. Rendigs, Jr., of Cincinnati, for appellant.

Julius R. Samuels, of Cincinnati, for appellee.


This is an appeal by the defendant from a judgment for $1000 rendered on a verdict for that amount in favor of the plaintiff on account of personal injuries resulting to her by being struck by a baseball while she was witnessing a professional baseball game as a patron of the defendant.

This incident happened at Crosley Field, the defendant's ball park, in Cincinnati, in 1935, during a game between the Cincinnati Reds and the Chicago Cubs, two National League baseball clubs. The plaintiff was hit on the breast by a foul ball from the bat of a Cincinnati player who was taking his regular turn at bat during the game.

The seating arrangement at the park consisted of a roofed and double tiered grandstand, a part of which was protected from foul balls, behind the home or batter's plate, on either side of this grandstand and farther from the batter's plate other seats, called right and left pavilions, over which was a roof, but which were not protected by screening and beyond these the unroofed bleachers, in front of which was a screening extending upward ten or twelve feet. The grandstand and pavilions combined were curved in the form of a horse shoe.

The plaintiff was seated in the front row in the right pavilion at the time, more than one hundred feet from the batter. It was 'Ladies Day,' on which, by payment of 10 cents, a lady could obtain admission to the pavilion to witness the game from that point, or, if desired could pay an additional 25 cents and thereby secure admission to the screened portion of the grandstand. The plaintiff took advantage of the reduced rate, secured a ticket, paid the 10 cents, and selected a front seat in the pavilion from which to witness the game. There were available seats in the grandstand behind the screen, but the plaintiff said she preferred to sit toward the field rather than behind the batters, and on this particular occasion she had never intended to sit in the grandstand, and did not have the money with her to pay for a grandstand seat.

The plaintiff had frequently witnessed ball games at Crosley Field. She testified that she enjoyed witnessing ball games very much and had been in the habit for about twelve years of seeing as many games at Crosley Field as possible. She had already attended ten or more games there during the season of 1935. She usually sat in one of the pavilions, but, on occasions, had sat behind the screen in the grandstand. She testified that she was thoroughly familiar with the way the game was played and with the arrangement of the seats and the playing field. On many occasions she had seen balls batted into the pavilions, had seen patrons catch the balls, or scramble for them, as the case might be, but had never seen any patron hit by a ball.

On this specific occasion her attention was focused on the play at all times. She saw the batter and the pitcher in position. She saw the pitcher throw the ball. She saw the batter swing his bat, heard the bat hit the ball, watched the flight of the ball toward the right pavilion, where she was seated knew that it would fall in the crowd seated there, but did not suppose, according to her testimony, until it got within about two feet of her that it would strike her. She then threw up her hands to protect her face. She testified that she had never thought of the danger incident to sitting in the pavilion, and that there was no warning of any danger. It is manifest that she knew of all the elements of danger from such position and must be charged with consciousness of them. In Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, at pages 180 and 181, 147 N.E. 86, at page 87, summarizing the case, the court said: 'The consensus of the above opinions is to the effect that it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof.'

That the plaintiff had actual knowledge of all these things that the court said are common knowledge is clear.

It is a universal principle that when two persons come into such nearness to one another that they, and the agencies under their control, may cause injury to one another a duty devolves upon them to so conduct themselves and so manage the agencies under their control that neithr will be injured by failure of the other to comform to the standard of duty, the exact extent of the duty depending upon the attending circumstances. It is the plaintiff's claim, as stated in her brief that the defendant's conduct failed to meet the standard of duty arising out of the circumstances in these respects: 'The negligence claimed is that the defendant failed to take precautions and care for the safety of its guests and failed to provide any screening or other safeguards or protection for the safety of the persons occupying seats in the pavilion and failed to give warning or post notices or signs as a warning to indicate the danger of occupying such unscreened and unguarded seats.'

On analysis of the claim it is seen that two delinquencies are asserted: (1) That the defendant failed to provide any screening or other safeguard or protection for those sitting in the pavilion, and (2) that it failed to warn the plaintiff of the danger by posted notices or otherwise.

Now what was the duty which the defendant owed to the plaintiff?

The defendant owned or had possession of the ball park. It controlled the activities of the players who were acting as its agents in giving the exhibition. It had invited the plaintiff upon the premises to witness the game and the plaintiff had paid a...

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