Louisville Baseball Club v. Hill

• Decision Date: 12 June 1942
• Parties: Louisville Baseball Club v. Hill.
• Court: United States State Supreme Court — District of Kentucky

Page 333

291 Ky. 333

Louisville Baseball Club v. Hill.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

June 12, 1942.

1. Negligence. — Under the "res ipsa loquitur" doctrine where the thing which causes the injury is shown to be under the management or control of the defendant and the accident is such as in the ordinary course of events does not happen, the mere proof of happening of the accident is sufficient evidence of negligence on part of the one in whom such control is vested, in absence of a showing by defendant that the accident was attributable to causes over which he had no control.

2. Negligence. — Where boy who was walking on public street on way to ball game was struck by baseball which came over the fence surrounding baseball park of defendant, a professional baseball club, prior to time the game started, the "res ipsa loquitur" doctrine was applicable, and, on proof of happening of the accident, the boy was entitled to recover for injuries sustained, in absence of proof by the defendant concerning the cause of the accident.

3. Evidence. — It is common knowledge that professional baseball players are trained and coached to knock the ball over the fence for a home run and that such a feat is not unusual.

4. Negligence. — One must so use his property as not to injure another, and, where a property owner suffers on his property that which endangers persons traveling on the abutting street, he is liable in damages for injuries resulting therefrom.

5. Appeal and Error. — The Court of Appeals will set aside a verdict as being contrary to law, where the jury disregards instructions, regardless of correctness of the instructions.

6. Appeal and Error. — Where verdict is one which under the evidence the jury should have been instructed to return, judgment entered thereon will be upheld even though the verdict was not returned under direction of the court.

7. Appeal and Error. — Where plaintiff was entitled to directed verdict under the evidence, but the case was submitted to the jury which returned the verdict for the plaintiff, the verdict would be upheld regardless of whether the jury followed the court's instructions.

8. Evidence. — It is common knowledge that any injury to the sinus is serious and that an operation to remove bone and cartilage from the nose is one of considerable magnitude and expense, without complete assurance that it will give desired relief.

9. Damages. — Conflicting testimony of specialists concerning whether septum dividing plaintiff's nose was thicker as result of accident, and whether the injury to plaintiff's nose would be permanent, presented issue for jury.

10. Appeal and Error. — Question of damages recoverable for pain and suffering is left to the sound discretion of the jury, and, unless the verdict is so out of proportion that it strikes the mind at first blush as having been rendered as a result of passion or prejudice rather than through process of sound reasoning, a reviewing court will not disturb it.

11. Damages. — An award of $2,000 compensatory damages for 11-year-old boy whose nose was fractured in two places, and who allegedly sustained permanent injuries and who had incurred $150 doctors' bills and would be required to submit to further operation subsequently, was not excessive.

12. Jury. — The statute regarding number required on jury panel must be complied with, but noncompliance therewith may be "waived" by a litigant through failure to make seasonable objection (Ky. Stats., sec. 2243).

13. Jury. — Where defendant's counsel took for granted that there was a full jury panel instead of making inquiry at time case was called for trial, and waited until after trial to bring to the court's attention fact that there were only 21 jurors on the regular panel, counsel "waived" right to insist on a full statutory panel, even though he did not discover the error until after the trial, since reasonable diligence on his part would have revealed it at time jury was impaneled (Ky. Stats., sec. 2243).

Appeal from Jefferson Circuit Court.

Doolan, Helm, Stites & Wood for appellant.

Hubert Sirles for appellee.

Before Burrell H. Farnsley, Judge.

OPINION OF THE COURT BY SIMS, COMMISSIONER.

Affirming.

William Donald Hill, an 11 year old boy, accompanied by his mother, while on his way to a ball game in Louisville about 7:30 P.M., on July 9, 1940, was struck in the face by a baseball which came over the fence from appellant's ball park as he was crossing a public street, Eastern Parkway. The ball cut the cheek under his left eye, also broke his nose, and in a suit brought in the name of his mother as next friend, he recovered a judgment for $2,000 compensatory damages against appellant, Louisville Baseball Club. The Club relies upon four grounds for reversal of the judgment: 1. It was entitled to a directed verdict; 2. the verdict is contrary to law; 3. the damages are excessive; 4. a statutory jury panel was not provided on the trial.

There is practically no conflict in the evidence as to how the accident happened. Donald was on the public street in front of the ball park when a baseball came over the left field wall and struck him in the face. The wall is of brick some 20 inches thick, 11 feet high and at this point is 331 feet from home plate. The ordinary height of walls around league ball parks is from 10 to 11 feet and this is one of the largest parks in America, the wall in center field being 512 feet from home plate, with the right field wall 350 feet from the plate. There is proof that the accident happened some 15 or 20 minutes before the game started, though there is no evidence as to what caused the ball to soar over the fence — whether it was batted or thrown by a player, or whether some individual knocked or threw it, is unknown.

Appellant argues there was no evidence of negligence on its part, nor was there evidence as to how the ball happened to come over the fence, therefore it was entitled to a directed verdict. It is the contention of appellee that the doctrine of res ipsa loquitur applies. That doctrine is that where the thing which causes the injury is shown to be under the management or control of the defendant and the accident is such as in the ordinary course of events does not happen, the mere proof of the happening of the accident is sufficient evidence of negligence on the part of the one in whom such control is vested, in the absence of a showing by the defendant that the accident was attributable to causes over which he had no control. Paducah Traction Co. v. Baker, 130 Ky. 360, 113 S.W. 449, 18 L.R.A., N.S., 1185; Kniffley v. Reid, 287 Ky. 212, 152 S.W. (2d) 615.

Appellee's testimony presents a case against appellant for the application of this rule. The answer to the Club's argument that the child did not show the ball was batted or thrown by a player on its field is that under the res ipsa loquitur doctrine it was incumbent upon the Club to prove this fact as a defense after appellee established he was injured by a ball coming from the park. The doctrine of res ipsa loquitur has been applied often where objects have fallen on travelers on public streets. 38 Am. Jur. Sec. 306, p. 1003, 1004; Powers v. Rex Coal Co., 207 Ky. 761, 270 S.W. 28.

Bruce Dudley, President of the Club, testified that balls are knocked out of the park quite frequently and they are hit over the left field wall, although not very many in a single game. The testimony of Dudley, as well as that of other witnesses for appellant, was that this is one of the most difficult parks in baseball to hit a home run on account of the size of the field. It is common knowledge that professional baseball players are trained and coached to knock the ball over the fence for a home run and that such a feat is not at all unusual. Hence we are constrained to hold that appellant had notice that balls...