McNiel v. Fort Worth Baseball Club
| Decision Date | 30 April 1954 |
| Docket Number | No. 15505,15505 |
| Citation | 268 S.W.2d 244 |
| Parties | McNIEL v. FORT WORTH BASEBALL CLUB. |
| Court | Texas Court of Appeals |
Joe Burt, Fort Worth, for appellant.
Stone, Agerton, Parker & Kerr and G. W. Parker, Jr., Fort Worth, for appellee.
Suit was brought by John B. McNiel against the Fort Worth Baseball Club of the Texas League for personal injuries. From a summary judgment in favor of the Baseball Club, McNiel has appealed.
In his petition appellant alleged that he purchased a ticket in the reserve section behind first base in LaGrave Field on the occasion in question; the section was unscreened, a fact which he knew; he had requested a seat in that particular section because he preferred it to any other; he was familiar with the game of baseball, having played it in his younger life and having been a spectator at many baseball games since his playing days; on the occasion in question he was seated in the place above indicated when he was 'struck by a vagrant baseball which had been deflected from the bat of a player standing in the batters box and trying to hit baseballs that were being thrown at and to him by a teammate * * *.' In other words, he was hit by a foul ball during batting practice.
Allegations in the petition alleged it was the general custom to place a screen or open wire cage to the rear of the batter during batting practice; that in the normal course the cage would stop foul balls and in the normal course the cage was left behind all batters during batting practice, and spectators were free to visit and purchase from vendors without being on the lookout for foul balls, and further that on the occasion in question immediately before he was struck, employees of the Ball Club, in the course of their employment, removed the batting cage; after the cage was removed batting practice continued and a foul ball hit him in the left eye. He alleged that the employees were negligent in removing said cage before batting practice ceased and he was entitled to rely on the general practice of appellee in leaving the cage in place during the entire period of batting practice.
The appellee filed an answer in which it alleged that appellant purchased a seat in a section of the ball park that was unprotected by a screen wire, that if the batting screen was removed prior to the accident appellant saw same removed and remained in his seat and saw that batting practice was continuing; that in view of the foregoing appellant assumed the risk of any injury from being hit by a foul ball, and, in the alterantive, he was guilty of contributory negligence in remaining in the unprotected portion of the stand after he had observed that batting practice continued after the removal of the cage.
After taking appellant's deposition the appellee moved for summary judgment, based on appellant's pleadings and the deposition. Upon due hearing the court rendered a short form judgment for appellee for the reason 'there is no genuine issue of any material fact * * *.'
There was no evidence introduced on the hearing on the motion for summary judgment, other than the pleadings and appellant's deposition.
According to the deposition he was a man forty-eight years of age. In his younger days he played baseball and has since been a regular patron of games. He has attended most of the Fort Worth Texas League home games. When he arrived at the ball park on the night of the accident, batting practice was in progress at home plate. He usually sat in the same section where he was sitting the night of the accident. Batting practice on this occasion was to the outfield from home plate. After he had watched a few minutes he saw a small tractor move the batting cage out of the park. For ten minutes thereafter batting practice continued and he continued to watch said practice. He knew the ball which hit him came from home plate because he saw the ball batted.
It is the general rule in Texas and other states that a baseball club which is in the business of providing that form of public entertainment for...
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