Murrell v. Smith

• Decision Date: 05 December 1910
• Citation: 152 Mo. App. 95,133 S.W. 76
• Parties: MURRELL et al. v. SMITH et al.
• Court: Missouri Court of Appeals

133 S.W. 76

152 Mo. A. 95

MURRELL et al. v. SMITH et al.

Springfield Court of Appeals. Missouri.

December 5, 1910.

Rehearing Denied January 3, 1911.

1. APPEAL AND ERROR (§ 1001)—VERDICT— CONCLUSIVENESS.

Where a verdict is supported by substantial evidence, it will not be disturbed on appeal.

2. NEGLIGENCE (§ 136)—CONTRIBUTORY NEGLIGENCE —QUESTION FOR JURY.

Where the facts are disputed in negligence cases, or the credibility of witnesses is drawn in question, where material facts are left in doubt, or there are inferences to be drawn from the facts proven, the question of negligence or contributory negligence must be submitted to a jury.

3. THEATERS AND SHOWS (§ 6)—DANGEROUS PREMISES—STREET FAIR.

Where the promoters of a street fair invited large crowds to attend the same, they were bound to use reasonable care to see that the premises were kept in a safe condition for such use as they would probably be subjected to.

4. THEATERS AND SHOWS (§ 6)—STREET FAIR ASSOCIATION—GUESTS—DUTY OF MANAGER.

Where defendants promoted a street fair to which the public was invited, every person who attended the fair was the guest of defendants, who were responsible for the manner in which the fair was conducted, and while the relations continued were bound to protect such guests against dangers that could reasonably be anticipated, and which they should have foreseen, and by ordinary care could have prevented.

5. THEATERS AND SHOWS (§ 6)—DEFECTIVE PREMISES—EVIDENCE.

Where plaintiffs' son was killed by the collapse of a performers' stand erected in connection with a street fair, actual knowledge of the defective condition of the stand, or knowledge in fact that injuries would probably result from a collapse thereof, was not essential to charge the fair managers with negligence, but evidence that defendants had knowledge of the defective condition, or had been informed that injuries would clearly follow from a collapse of the stand, was competent on the issue of defendants' negligence.

6. THEATERS AND SHOWS (§ 6)—DANGEROUS PREMISES—STREET FAIR—COLLAPSE OF PERFORMERS' STAND—DEATH OF CHILD—QUESTION FOR JURY.

In an action for the death of plaintiffs' child, 8 years of age, killed by the collapse of a performers' stand erected by defendants in the operation of a street fair, while the child who was a guest of the fair endeavored to pass under the stand to avoid a crowd, and there was nothing to restrain him from so doing, whether defendants were negligent in constructing an insecure stand, or in preventing the crowd surrounding the stand from going upon it, or in not taking precautions to prevent people from going under it, and whether such negligence was the proximate cause of the child's death, held for the jury.

7. THEATERS AND SHOWS (§ 6)—INTERVENING CAUSE.

Defendants constructed a performers' platform as a part of the accessories of a street fair in a negligent and unsafe manner. No provision was made to keep children from going beneath the stand, or from keeping the crowd from going upon it. Plaintiffs' minor son was killed by the collapse of the stand while under it, due to many persons crowding upon it in order to see certain attractions afforded by the fair. Held, that the climbing of the spectators on the platform, and the surging of the crowd against and around it, was not such an intervening cause as to relieve defendants from liability for their original negligence.

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

Action by J. S. Murrell and another against Harry M. Smith and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

This was an action commenced in the circuit court of Greene county on the 24th day of December, 1909, by J. S. Murrell and Nora Murrell, as the father and mother of Oliver Murrell, deceased, against Harry M. Smith and others, and was an action for damages for the death of plaintiffs' infant son.

The petition, in substance, charges that the defendants were members of the Merchants' Campbell Street Fair Association which was organized for the purpose of holding street fairs in order to attract crowds, draw trade, and build up their street in the city of Springfield. That it was advertised that a street fair would be held on the 6th day of October, 1909, and that, for the purpose of securing a crowd, defendants advertised free attractions to be given to the public on a platform on the grounds near Campbell street, in said city of Springfield; that among other free attractions would be acrobatic, spiritualistic, and hypnotic performances, and trapeze and jugglery performances. That plaintiffs' son, Oliver, a child eight years of age, with his father and mother, attended the fair on the evening of October 6th. That a platform, to be used by the performers, 14 feet wide and 18 feet long and some 4 feet above the ground, was erected on the grounds. That after the infant son of the plaintiffs had seen the attractions, when starting home, he went under this platform, and it fell while he was underneath it and crushed him. The prayer is for judgment for damages in the sum of $7,500. The answer was a general denial. The venue of the action was changed on application of the plaintiffs and the case was sent to the circuit court of Dade county. Upon trial before a jury, plaintiffs obtained a judgment in the sum of $3,000, from which the defendants duly perfected their appeal to this court.

The respondents are the parents of Oliver Murrell, deceased, a youth eight years of age at the time of his death. The appellants are members of the Campbell Street Fair Association, an organization of merchants, formed for the purpose of holding street fairs, and giving free attractions near their places of business in the city of Springfield, Mo., in order to attract crowds, draw trade, build up their street as a business center, and increase the value of their property and business. The membership of the association consisted of grocers, bankers, and others, who organized and appointed committees and officers. The fair was held on the 6th of October, 1909, on a lot adjoining Campbell street. This lot had been used theretofore as a walkway, driveway, and market place, an open space which was free to the public, and which had been used for fair purposes and the like for several years. Great efforts were made prior to as well as on the day on which the fair was held to attract as large a crowd as possible; and, for that purpose, it was held out to the public that there would be many free attractions, such as acrobatic, spiritualistic, and hypnotic performances, trapeze and jugglery performances, etc. For the purpose of raising the performers above the crowd and enabling the spectators to get a better view of the performances, the platform in question was erected, and was some 14 feet wide and 18 feet long, and about 4 or 5 feet above the ground. The defendants constructed this platform in close proximity to the sidewalk on Campbell street. Within 10 or 15 feet of this platform, on the west or southwest side of it, a trapeze was suspended for aërial performances. A wire was stretched from the platform in question to another platform, and there was a frame rack about 20 feet high in which "Fresco," the trapeze performer and ring walker, walked with his head down.

The evidence was conflicting as to the substantial nature of the platform, the evidence for the plaintiffs tending to show that its construction was of a weak, unsafe, and unsubstantial character, that the materials used in its construction were wholly insufficient, that the supports were too small, and insecurely fixed, and that it was unsafe and likely to fall under the weight of any considerable number of people, and was likely to be overthrown by persons standing on the ground and pushing or crowding against it. The appellants, on the contrary, showed by numerous witnesses that the materials, workmanship, and construction were in every respect first-class. Respondents' evidence also tended to show that underneath the platform was open, and there was nothing to prevent children from readily going underneath the same, as there were no ropes or barriers; that frequently, during the day, from time to time, before the injury to plaintiffs' son, numbers of people other than performers occupied the platform, consisting of men, women, and children, but not in such considerable numbers as to create any alarm as to the sufficiency of the platform; that during the day, children were seen underneath the platform walking from side to side; ice was stored under the platform, and sawdust, where the children played. That during the day great crowds of people spread over the grounds where the street fair was being held and onto the adjoining streets and open places; that they crowded around and about the platform and were attracted to the platform by the performances thereon and thereabouts. The evidence showed that the platform was built for the performers, and not for the use of the public, and tended to show that there was no invitation to the public to go upon it; that there was no place for their accommodation when they did get on it; that there were no chairs on it, except for performers, no railing, no steps, and no ladder for going upon it.

Among others, plaintiffs and their boy, Oliver, attended the street fair to see the attractions. After Oliver Murrell and a playmate by the name of Sammy Hitchcock had been on the grounds some time, they left Oliver's mother to go west of the platform in order to get a better view of the performances on the trapeze, and, some 15 minutes after leaving Oliver's mother, the two boys started home, but when they had made their way to Campbell street, they saw they could not get through to go on because of the density of the crowd, and the way under the platform being open, Oliver went under it, as its construction would not interfere with his entrance, and when about under the center of it,...