Polk v. Spokane Interstate Fair

• Decision Date: 24 May 1913
• Parties: POLK v. SPOKANE INTERSTATE FAIR.
• Court: Washington Supreme Court

132 P. 401

73 Wash. 610

POLK v. SPOKANE INTERSTATE FAIR.

Supreme Court of Washington

May 24, 1913

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Stuart Polk against the Spokane Interstate Fair. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Post Avery & Higgins, of Spokane, for appellant.

Belt &amp Powell, of Spokane, for respondent.

MORRIS J.

Respondent and his assignors lost two race horses and other property through a fire which burned the stables in which the horses and other property were kept, and, alleging the negligence of appellant as the cause of the fire, brought this action in which judgment was obtained below.

Error is assigned in the giving and refusing to give certain instructions. We have reviewed those which we think call for a reversal of the judgment. So far as necessary to refer to the facts, it appears that appellant has for many years conducted an annual fair at Spokane, at which horse racing was one of the daily features. Stables were provided on the east edge of the fair grounds, the free use of which was given to the owners of such horses as cared to use them. It was the custom of appellant to give an exhibition of fireworks each evening during the progress of the fair. These fireworks were set off in the northerly end of the inclosed grounds, and the skyrockets and other like pieces were aimed so as to pass over the line of stables and into the uninhabited space beyond. The skyrockets frequently fell upon, the stables and into piles of refuse just beyond them, and, in order to protect the stables, a number of watchmen were stationed around them during the display and for some time thereafter. All these facts were well known to respondent, and, appreciating the danger of the situation, he instructed his employés to take precaution against the danger from fire. Two grounds of negligence were pleaded: First, in the careless and negligent manner in which the burning material was permitted to fall upon the stables and the inflammable matter adjacent to them; and, second, in failing and neglecting to furnish adequate protection. The fire occurred in the early morning of October 7, 1911, and the jury by a special verdict fixed the negligence of the appellant at the failure 'to employ sufficient watchmen at that time of night, especially behind the stables.' The defense, among other things, alleged that the respondent fully knew and appreciated the danger, and with such knowledge and appreciation voluntarily used the stables, and thus assumed all the risk of danger from fire. It is because of appellant's contention that, in view of the evidence, the court did not properly submit this defense to the jury, this appeal is taken.

The first instruction complained of is this: '* * * And if, notwithstanding the exercise of this care, there still remained the danger from fire, and plaintiff knew that, notwithstanding such care, such fires were likely to occur, then plaintiff will be held to have assumed the risk of all such dangers; and if you so find, then your verdict must be for defendant.' Appellant complains that in this instruction the court improperly limited the defense to respondent's actual knowledge in the use of the phrase 'and plaintiff knew.' This complaint is well taken. Respondent was chargeable not only with what he knew, but with what under the given circumstances he should have known.

If the court had in other apt instructions placed this defense before the jury, we should not regard the failure of the court to extend respondent's assumption of danger beyond his actual knowledge as in this instruction as fatal, as this instruction is predicated upon appellant's exercise of due care, and, the jury having found that appellant did not exercise due care, it might be said the instruction has no application to...