King v. Ringling

• Decision Date: 28 June 1910
• Citation: 130 S.W. 482,145 Mo. App. 285
• Parties: KING v. RINGLING et al.
• Court: Missouri Court of Appeals

130 S.W. 482

145 Mo. App. 285

KING v. RINGLING et al.

Kansas City Court of Appeals. Missouri.

June 28, 1910.

1. THEATERS AND SHOWS (§ 6)—PERSONS ATTENDING —LIABILITIES FOR INJURIES.

In an action against the proprietors of a circus for injuries received by a patron caused by the blowing down of a part of the tent during a violent windstorm, the gravamen of the action is negligence, and plaintiff must show that defendants were guilty of a breach of some duty to her which was the proximate cause of the injury, and her evidence must not leave the inference of actionable negligence open to conjecture or speculation, but must show the causal connection between the alleged negligent act and her injury.

2. THEATERS AND SHOWS (§ 6)—PERSONS ATTENDING —LIABILITIES FOR INJURIES.

In voluntarily occupying a seat in a circus tent, a patron assumes all the risks inherent in structures of that character, and a tent, however well constructed and erected, is not as substantial as other structures, and proprietors of the circus, in inviting the public to occupy their tent for their own profit, bind themselves to exercise reasonable care to protect their patrons against injury from other than natural or accidental causes, and must observe care commensurate to the circumstances to protect their patrons against injury; the degree of care which they must exercise being that which would be expected of an ordinarily careful and prudent person in their position.

3. THEATERS AND SHOWS (§ 6)—PERSONS ATTENDING —LIABILITY FOR INJURIES.

Where a circus tent is partially blown down during a very severe windstorm which came up very suddenly, and a patron is injured, the rule of res ipsa loquitur does not apply, neither will the inference of negligence arising from the fact that the circus employés before the storm arose had begun pulling up stakes preparatory to taking down the tent, as the burden would be on plaintiff to show that the pulling of the stakes caused the collapse of the tent.

4. NEGLIGENCE (§ 121) — PRESUMPTION OF RIGHT ACTING.

In negligence, the initial presumption of right acting obtains and continues until overthrown by evidence.

5. THEATERS AND SHOWS (§ 6)—PERSONS ATTENDING —LIABILITY FOR INJURIES—SUFFICIENCY OF EVIDENCE.

In an action by a circus patron against the circus proprietors for injuries received during the collapse of a part of the circus tent during a violent windstorm, evidence as to defendant's negligence held insufficient to support a verdict for plaintiff.

Appeal from Circuit Court, Buchanan County; Lucian J. Eastin, Judge.

Action by Emma King against Albert Ringling and others. Judgment for plaintiff, and defendants appeal. Reversed.

John M. Kelly and Rusk & Stringfellow, for appellants. Culver, Spencer & Phillip, for respondent.

JOHNSON, J.

This action is to recover damages for personal injuries alleged to have been caused by the negligence of defendants. A trial before a jury resulted in a verdict and judgment for plaintiff in the sum of $600, and the cause is before us on the appeal of defendants. The injury occurred in the city of Maryville in the afternoon of September 18, 1905, at a performance of a traveling show of which defendants were the proprietors. Plaintiff and her husband had paid the admission fee charged by defendants and were occupying "general admission" seats in the "main tent," when a violent storm wrecked one end of the tent and threw the spectators of the performance into a panic. In the general rush to escape, plaintiff was struck by a falling board or timber and one of her legs was broken. The issue of negligence presented by the pleadings and evidence is whether or not the supports of the tent were weakened by the servants of defendants in preparation to break camp during the performance in the circus tent and shortly before the storm broke. Plaintiff contends that such negligence was the proximate cause of the injury, while defendants deny that the supports were weakened and contend that the storm that wrecked the tent was so extraordinary in its suddenness and violence that it should be classed in law as an act of God. There is no contention that the tent and its supports and fastenings were defective in construction or that any part of the structure and its connections were out of repair, nor is any point made against the manner in which the tent was erected. Plaintiff founds her cause of action on the sole fact, testified to by a number of her witnesses, that after the performance began, alternate stakes at one end of the tent were pulled by a gang of workmen operating a stake pulling machine. The existence of this fact is denied by the witnesses of defendants, who say, in the first place that it would have been impossible to pull stakes before the canvas had been lowered to the ground; and, in the second place, that alternate stakes to which certain auxiliary guy ropes were attached could have been withdrawn from use without sensibly diminishing the strength of the actual supports of the tent, and since the evidence of plaintiff does not show to the contrary the presumption should be indulged that only those stakes were pulled, if any, which were not essential to the stability of the tent.

A thorough description of the tent is essential to a proper understanding of the points in controversy. Below, in Fig. 1, is a reproduction of a photograph of a perfect model of the tent. Fig. 2 exhibits a detail of the supporting ropes, and the stakes to which they were attached.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The tent was 440 feet long and 190 feet wide. It had six center poles and three circles of lesser poles to support and give to the canvas necessary elevation and convexity. The center poles were 54 feet long; the poles of the inner circle were 41½ feet long; those of the next circle were 31 feet and those of the outside circle which were set back of the seats for spectators were 14...