Lee v. National League Baseball Club of Milwaukee, Inc.

Citation4 Wis.2d 168,89 N.W.2d 811
PartiesMrs. May LEE, Respondent, v. NATIONAL LEAGUE BASEBALL CLUB OF MILWAUKEE, Inc., Appellant.
Decision Date06 May 1958
CourtUnited States State Supreme Court of Wisconsin

Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey, Milwaukee, of counsel, for appellant.

Jerome D. (Jerry) Grant, Milwaukee, for respondent.

CURRIE, Justice.

The issues presented on this appeal are as follows:

(1) Was the defendant negligent in failing to take proper steps to protect the plaintiff from injury by the acts of other spectators at the time the foul ball was batted into the box near where the plaintiff was seated?

(2) If the first question is decided in the affirmative, did such negligence constitute a proximate cause of the plaintiff's injuries?

(3) Did the plaintiff assume the risk of being injured as a result of patrons scrambling for a foul ball and knocking her out of her chair?

It has generally been held that one who invites the public to a public amusement place operated by him is liable for injury sustained by an invitee as a result of acts of third persons, if such operator has not taken reasonable and appropriate measures to restrict the conduct of such third parties, of which he should have been aware and should have realized was dangerous. Edwards v. Hollywood Canteen, 1946, 27 Cal.2d 802, 167 P.2d 729, 733; Oliver v. Oakwood Country Club, Mo.1951, 245 S.W.2d 37, 41; Hughes v. St. Louis National League Baseball Club, 19498 359 Mo. 993, 224 S.W.2d 989, 994, 16 A.L.R.2d 904; Fimple v. Archer Ballroom Co., 1949, 150 Neb. 681, 35 N.W.2d 680, 683-684; Tyrrell v. Quigley, 1946, 186 Misc. 972, 60 N.Y.S.2d 821, 822; Boardman v. Ottinger, 1939, 161 Or. 202, 88 P.2d 967, 969, and Quinn v. Smith Co., 5 Cir., 1932, 57 F.2d 784, 785. See also, Annotation, 20 A.L.R.2d at pages 8, 32, sec. 13.

The leading Wisconsin case on this issue of the duty, which the operator of a place of amusement is required to exercise in order to protect his patrons from the wrongful acts of third persons, is Pfeifer v. Standard Gateway Theater, Inc., 1951, 259 Wis. 333, 48 N.W.2d 505. In that case a boy, while a patron in the defendant's moving picture theater, was injured as a result of being struck in the eye by an object thrown or projected by some third person. There was testimony that for some time prior to the accident a group of older boys seated near the plaintiff had been throwing popcorn boxes and shooting paper wads by means of rubber bands. There was a dispute in the evidence as to whether the defendant at the time had any employee present patrolling the theater aisles. The trial court directed a verdict for the defendant. This court reversed and held that a jury issue was presented as to whether the defendant had been negligent in failing to properly patrol its theater. A number of cases from other jurisdictions were cited which held that whether the number of guards furnished or other precautions taken by the owner, who has assembled a large crowd of people on his property, are sufficient to control the actions of a crowd, is ordinarily a question for the jury to determine under all the circumstances.

At the time the plaintiff was knocked from her seat in the stampede and scramble by about a dozen other spectators to secure the foul ball as a souvenir, the usher stationed in the box had been withdrawn from his customary station therein and was standing at the extreme front of the box with his back to most of the persons occupying the box. His position at the front of the box was not for the purpose of maintaining order and protecting patrons, but so that he would be in a position to go out onto the playing field as soon as the game was over to perform other duties there.

Counsel for the defendant urge that the defendant had no reason to anticipate that the withdrawal of the usher might result in a patron such as the plaintiff being injured by the acts of the crowd. Special stress is placed upon the testimony that no person had previously been injured in a scramble for a ball batted into the stands at any prior baseball game in the stadium during the operation of the same by the defendant. However, it is conceded that the crowd present at games had scrambled for foul balls hit into the stands. Therefore, the defendant ought to have reasonably anticipated that some patron might some time be injured as a result of such a scramble. Restatement 2, Torts, p. 816, sec. 302(b), Comment c.

We are satisfied that an issue of fact was presented, as to whether the defendant was negligent in having failed to have taken any precautions to protect the plaintiff from injury by the acts of third persons in stampeding in their scramble for the ball, and we so hold. Therefore, the trial court's finding of negligence against the defendant is conclusive on this court.

We consider that the issue of whether such negligence constituted a proximate cause of plaintiff's injuries presents a closer question. William Bradley, defendant's chief usher, testified that, even if the usher assigned to Box 14 had been in his customary station some six to ten feet from plaintiff's chair, there was nothing such usher could have done to have prevented the ten or twelve spectators stampeding to recover the ball batted into such box near the plaintiff. The testimony disclosed that this happened in 'just a flash'. On the other hand, Bradley also testified that the crowd present at a game in the Milwaukee County Stadium is less orderly when an usher is not present; that ushers are directed to instruct patrons to keep their seats when a foul ball is hit into the stands; and that the ushers are also instructed 'to follow a foul ball to see that nobody gets hurt'. The defendant contends that, if the usher in Box 14 had been present at his customary station when the foul ball was batted into the box and landed near the plaintiff, the spectators who engaged in the stampede would have disregarded any order of the usher to keep their seats.

The trial court in Finding of Fact No. 9 expressly found that the absence of the usher from his assigned station was a substantial factor in producing plaintiff's injuries. This court is committed to the 'substantial factor' test of determining proximate cause. Pfeifer v. Standard Gateway Theater, Inc., 1952, 262 Wis. 229, 236, 55 N.W.2d 29. We do not consider that Bradley's opinion testimony, that the presence of an usher would have been ineffective to have prevented the plaintiff's injury, was conclusive on this issue of proximate cause. It is the conclusion of this court that issue of proximate cause presented an issue of...

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