Phillips v. Butte Jockey Club & Fair Ass'n
| Decision Date | 14 November 1912 |
| Citation | 127 P. 1011,46 Mont. 338 |
| Parties | PHILLIPS v. BUTTE JOCKEY CLUB & FAIR ASS'N. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by G. Phillips against the Butte Jockey Club & Fair Association. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Frank C. Walker and Lamb & Walker, all of Butte, for appellant.
McCaffery and Tyler, of Butte, for respondent.
This is an action for damages for personal injuries. The Butte Jockey Club & Fair Association is a private corporation which conducts a place of amusement at Butte, where, during a certain season of each year, horse racing for premiums or purses is carried on, and to which the public generally is invited and an admission fee charged. Within the inclosure of the race course, the association has an amphitheater or grand stand with raised seats for the accommodation of its patrons. In order to reach these seats certain stairways lead from the ground to the grand stand. On August 18, 1910, while the race meeting for that year was being conducted by the association this plaintiff accepted the invitation extended to the public generally to attend on that day, paid her admission fee, and took a seat in the grand stand. In attempting to leave it she started to descend the most westerly stairway, when she fell to the first landing and sustained certain injuries of which she complains. She alleges that the cause of her fall was a large nail protruding an inch or more upward through the step of the stairway upon which her clothes caught, and that her injuries resulted from the fall and from alighting upon a broken board in the floor on the first landing. She undertakes to charge negligence on the part of the defendant in permitting the nail to protrude from the step of the stairway and the broken board to remain in the floor of the landing. It is alleged that the defendant negligently permitted these defects to remain "for a considerable period of time" before the day of the injury, "and at the time of said injury, and long prior thereto, defendant knew of the defective condition of the said stairs." The defendant challenged the sufficiency of the complaint by demurrer and by an objection to the introduction of any evidence. Its answer is a denial of any negligence on its part. The trial resulted in a verdict and judgment in favor of plaintiff, and, from the judgment and an order denying it a new trial, the defendant has appealed. Only two questions are presented, and only one of these need be determined at this time.
It is, Does the complaint state a cause of action? The facts of the case present a question altogether new in this state and one somewhat difficult of solution, since there is a decided conflict in the decisions from other states where similar questions have arisen. In order to determine whether the complaint states a cause of action, it is necessary, first, to determine the principal question, What is the measure of duty which the owner of a place of amusement, such as a race course, owes to his patron who comes thereto at his invitation and who pays for the privilege?
That the owner is not an insurer of the safety of his patrons the authorities are all agreed, but beyond this there is an irreconcilable conflict. Two classes of cases are to be found. In the first are those cases holding that the relationship between the owner of the grand stand and his patron is analogous to that existing between a carrier and passenger for hire, and in the second class are those cases holding that the duty of the owner of the grand stand to his patrons is measured by the standard of ordinary care. If the rule announced by the first class of cases above is to be adopted here, then this complaint is sufficient under all the authorities; if, however, the duty of the grand stand owner is to be measured by the standard of ordinary care, the complaint does not state a cause of action under the former decision of this court and the holding of other courts generally.
The courts which have attempted to draw an analogy between the relationship of the owner of a race course and his patron who pays for the privilege of witnessing a race, and that existing between a common carrier and a passenger for hire have experienced the greatest difficulty in formulating any reason for their position, and apparently equally as great difficulty in stating the rule to which they adhere. A case generally cited by the courts of the first class above as the leading case of that class is Francies v. Cockrell, L. R. 5 Q. B. 184, involving facts somewhat similar to those before us in the present instance. In the English case the grand stand was erected by an independent contractor, but so negligently built that a part of it fell, resulting in injury to the plaintiff who had paid an admission fee to witness steeple chase races. It was found that the defendant himself was without fault, and the only question for decision was whether he was to be held for the negligence of the independent contractor. The Court of Queen's Bench held that he was liable. In the course of the opinion it is said: ...
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