Richmond & M. Ry. Co v. Moore's Adm'r.1

• Decision Date: 01 April 1897
• Citation: 94 Va. 493,27 S.E. 70
• Court: Virginia Supreme Court
• Parties: RICHMOND & M. RY. CO. v. MOORE'S ADM'R.1

27 S.E. 70

94 Va. 493

RICHMOND & M. RY. CO.

v.MOORE'S ADM'R.¹

Supreme Court of Appeals of Virginia.

April 1, 1897.

Action fob Death—Declaration—Sufficiency —Negligence—Independent Contractor.

1. In an action against a street-railroad company for the death of plaintiff's intestate, it appeared that defendant advertised balloon ascensions at a park owned by it, and that deceased was killed by the falling of a pole used to sustain the balloon while being inflated. Held that, where the declaration was otherwise sufficient, it was immaterial that it did not allege whether deceased went to the park on defendant's street cars, or otherwise.

2. Where it appeared that defendant advertised balloon ascensions at the park, by a person employed by it, and that a pole used to sustain the balloon while being inflated fell on deceased when the balloon was released, because no warning was given that the poles would fall at such time, and the people were allowed to gather near them, even if the person employed by defendant was an independent contractor, defendant was not relieved of liability.

Appeal from circuit court, Chesterfield county.

Action by Abner L. Moore, administrator of the estate of George E. Moore, deceased, against the Richmond & Manchester Railway Company, for the death of plaintiff's intestate, caused by defendant's negligence. Prom a judgment for plaintiff, defendant appeals. Affirmed.

Wyndham R. Meredith and Meade Haskins, for appellant.

B. T. Crump and J. M. Gregory, for appellee.

HARRISON, J. The defendant (plaintiff in error here) was a street-railway company, running its cars from the city of Richmond, through the city of Manchester, and about two miles beyond it, to a place known as "Forest Hill Park." This park was owned by the defendant, was under its control and management, was kept open to the public, and was made attractive in various ways, to induce people to make it a pleasure resort, and thereby gain patronage for the street railway. The defendant employed and paid one Peter Blum to go upon their park premises on the 11th, 13th, and 15th days of July, 1893, and make three balloon ascensions. The defendant advertised these performances in the newspapers, by handbills, and otherwise, and in this manner extended to the public an invitation to visit its premises, and witness the balloon ascensions. This invitation drew a large crowd to the defendant's premises on the evening of July 15, 1893, including many children, and among them the plaintiff's intestate, a little boy, eight years and six months old. In arranging for the balloon ascension, two poles, each about 40 feet long, were placed in an upright position, 50 feet apart, and secured by guy ropes attached to stakes driven in the ground. A rope was run from the top of one pole to the top of the other, and the balloon was swung to this rope, until inflated and ready to ascend, when the guy ropes were released, and the poles were thrown down. The evidence shows that the crown generally knew nothing of the danger they would be in from the falling of the poles, and supposed the poles were fixed and stationary; that the grown people, as well as the children, had crowded around the poles, watching the inflation and other preparations for the ascension. As the balloon was about ready to go up, Blum made some ef-fort to clear a way for the first pole to fall, and a signal was given to look out. The people took this to mean that the balloon was about to go up, and it created great excitement, stirring about, and running for better points of view. At this juncture the pole was released, and fell, striking the plaintiff's intestate on the head, and killing him.

The principles of law upon which the right of recovery rests in a case like this are well settled. Mr. Cooley, in his work on Torts (2d Ed., p. 718), says: "It has been stated on a preceding page that one is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit."

In the more recent work of Buswell on Personal Injuries, the law is well stated in section 66 as follows: "If a person enters upon premises on business to be transacted with the...