Louisville Baseball Club v. Hill

• Decision Date: 12 June 1942
• Citation: 291 Ky. 333,164 S.W.2d 398
• Parties: LOUISVILLE BASEBALL CLUB v. HILL.
• Court: Kentucky Court of Appeals

164 S.W.2d 398

291 Ky. 333

LOUISVILLE BASEBALL CLUB v. HILL.

Court of Appeals of Kentucky

June 12, 1942

Rehearing Denied Oct. 2, 1942.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division; Burrell H. Farnsley, Judge.

Action by William Donald Hill, etc., suing by Mrs. Jessie Hill (next friend), against the Louisville Baseball Club, for injuries sustained by the plaintiff when he was struck by a baseball. From an adverse judgment, the defendant appeals.

Affirmed.

Doolan Helm, Stites & Wood, of Louisville, for appellant.

Hubert Sirles, of Louisville, for appellee.

SIMS Commissioner.

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. § 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 were often knocked over this fence onto the public street and sidewalk on Eastern Parkway, and that it was bound to anticipate such balls might strike and injure persons thereon. One must so use his property as not to injure another, 50 C.J. § 54, p. 780, 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. 38 Am. Jur. § 141, p. 802. Lipscomb v. Cincinnati, N. & C. St. R. Co., 239 Ky. 587, 39 S.W.2d 991; Weitzmann v. Barber Asphalt Co., 190 N.Y. 452, 83 N.E. 477, 123 Am.St. Rep. 560, 564; Bishop v. Readsboro Chair Mfg. Co., 85 Vt. 141, 81 A. 454, 36 L.R.A., N.S., 1171, 1177, Ann.Cas. 1914B, 1163.

Appellant places much reliance on the case of Harrington v. Border City Mfg. Co., 240 Mass. 170, 132 N.E. 721, 18 A.L.R 610, which was followed in Dwyer v. Edison Electric Illuminating Co., 273 Mass. 234, 173 N.E. 594. In both cases a person on the street was injured by a ball batted over the fence. The Dwyer opinion holds that an employer permitting employees to play ball on a lot owned by it which adjoins a public street is not liable where a ball was knocked over a fence 200 feet from the batter's box and injured a person on the street. The reason given by those opinions for not imposing liability on the property owners was that when they permitted their employees to use their premises for recreational purposes they could not have foreseen or anticipated that the ball would be knocked over the fence and injure some person on the street, and they were not liable for the acts of the players, who at the time were not acting in the capacity of employees. But in the case at hand, appellant operated the park and the ball games played therein as a business, and the proof is to the effect that the ball was frequently knocked over this fence--indeed, one of the high points in the game is to hit the ball over the fence for a home run. The instant case is clearly distinguishable from the Harrington and Dwyer cases. Also it is distinguishable from Olds v. St. Louis Nat. Baseball Club, Mo. App., 119 S.W.2d 1000,...