Kane v. Burrillville Racing Ass'n., 8814.

• Citation: 54 A.2d 401
• Decision Date: 01 August 1947
• Docket Number: No. 8814.,8814.
• Parties: KANE v. BURRILLVILLE RACING ASS'N.
• Court: United States State Supreme Court of Rhode Island

54 A.2d 401

KANE

v.BURRILLVILLE RACING ASS'N.

No. 8814.

Supreme Court of Rhode Island.

Aug. 1, 1947.

Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Action of trespass on the case for personal injuries by Mary Kane against Burrillville Racing Association. The jury returned a verdict for plaintiff for $5,000 and motion for new trial was denied on condition of remittitur. On defendant's exceptions.

Exceptions sustained in part and case remitted for a new trial.

Edward F. Dwyer, of Woonsocket, for plaintiff.

Francis V. Reynolds, of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action of trespass on the case for negligence to recover for personal injuries sustained by the plaintiff while an invitee at defendant's race track. A jury in the superior court returned a verdict for the plaintiff for $5000. Defendant's motion for a new trial was thereafter heard and denied on condition that the plaintiff remit all of the verdict in excess of $4000; otherwise a new trial was granted. The plaintiff duly filed such remittitur. The case is before us on defendant's exceptions to the overruling of its demurrer to plaintiff's declaration; to the admission of certain evidence; to a portion of the charge; to the denial of its motion for a directed verdict; and to the denial of its motion for a new trial.

A brief outline of the evidence, which substantially follows the material allegations of the declaration, is sufficient for our purposes. The defendant owned and operated a race track in Pascoag in this state. The track had a covered wooden grandstand, estimated at between 100 to 140 feet long, with fire extinguishers of the soda-acid type, so called, which emit a spray or stream with a hissing noise when tipped over. Each extinguisher hung from a bracket affixed to the side of a roof support. The bracket had a protruding lip on which the handle of the extinguisher rested, and when thus hung the bottom of the extinguisher was from five to six feet from the floor of the grandstand. There was evidence that the extinguisher could be dislodged and caused to fall by a bump of sufficient force, especially if the force were exerted upwardly.

On October 7, 1943, the plaintiff, who had paid the admission fee, sat in the easterly part of the grandstand to watch the races. While she was so engaged, an unknown and excited patron in the westerly part of the grandstand inadvertently hit the bottom of the extinguisher, apparently with his shoulder, dislodging it from its support and causing it to fall to the floor, from whence it started to roll down a near-by stairway. The noise of the fall together with the ‘sizzling’ sound and the spray that came from the extinguisher created a commotion, which, accompanied by cries of ‘Fire!’ and Bomb!' from persons in that immediate vicinity, resulted in a stampede, so called, that involved and injured the plaintiff.

Defendant's first exception is to the overruling of its demurrer to plaintiff's declaration. This exception requires no discussion in view of our recent decision in Phelps v. Burrillville Racing Association, R.I., 53 A.2d 753, where we overruled the plaintiff's exception to the sustaining of a demurrer to that declaration in an action for negligence arising out of the same accident as is involved in the instant case. We have examined the declaration now before us and we find that it substantially complies with our opinion in the Phelps case. This exception is overruled.

We will next consider defendant's exceptions numbered 32 and 33, which are to the denial of its motion for a directed verdict. In support of these exceptions the defendant strongly relies upon the case of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, where the majority opinion held that the plaintiff was not entitled to recover because the injury to her was not reasonably within the ‘orbit’ of the natural and probable consequences of defendant's negligence. Briefly stated, the facts in that case were as follows. A man, who was carrying a small bundle wrapped in newspaper, jumped aboard one of the cars of a train that had just started. Appearing unsteady and as if about to fall, a guard on the car reached forward to help him in, and another guard on the station platform pushed him from behind. While he was being so helped, the package, whose contents were unknown to the guards but which consisted of fireworks, was dislodged and the fireworks exploded when they fell upon the tracks. At that time the plaintiff, a woman who was waiting for her train, was many feet away, standing close to some scales on the station platform. The shock of the explosion knocked down the scales, which in turn struck the plaintiff causing injuries for which she sued.

The New York court divided on the question as to whether the evidence in that case showed actionable negligence on the part of the defendant. The same basic question of law confronts us in the instant case, but the theory upon which the plaintiff here rests her case and the evidence in support thereof are so different as to make the Palsgraf case ina...