Schentzel v. Philadelphia National League Club

• Decision Date: 14 April 1953
• Parties: SCHENTZEL et al. v. PHILADELPHIA NATIONAL LEAGUE CLUB.
• Court: Pennsylvania Superior Court

96 A.2d 181

173 Pa.Super. 179

SCHENTZEL et al. v. PHILADELPHIA NATIONAL LEAGUE CLUB.

Superior Court of Pennsylvania.

April 14, 1953

Action of trespass for personal injuries by woman spectator, who while attending her first baseball game, was struck by foul ball which entered upper stand on first base line of diamond and by her husband for expenses incurred by reason of his wife's injuries and for loss of consortium. The Court of Common Pleas, No. 7, (Tried in C.P. No. 3) of Philadelphia County, at No. 2378 September Term, 1949, entered judgment on verdict for the wife and against her husband, and entered an order denying defendant's motion for judgment n. o. v and defendant appealed. The Superior Court, No. 167, October Term, 1952, Ross, J., held, inter alia, that the spectator had assumed the risk of being struck by a foul ball.

Reversed and judgment entered for defendant.

Thomas Raeburn White, Jr., and White, Williams & Scott, Philadelphia, for appellant.

Harry Goldbacher, Philadelphia, James C. Lanshe, Allentown, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

ROSS Judge.

In this action of trespass for personal injuries, damages were sought by the wife plaintiff (hereinafter referred to as plaintiff) for pain and suffering and by the husband plaintiff for expenses incurred by reason of his wife's injuries and for loss of consortium. The jury returned a verdict for the plaintiff and found against her husband. Defendant's motion for judgment n. o. v. was refused, and it has appealed to this Court.

On the afternoon of June 5, 1949, plaintiffs, residents of Allentown, traveled to Philadelphia to see a ‘ doubleheader’ baseball game between the Philadephia Phillies and the Chicago Cubs. They arrived at Shibe Park, the scene of the games, and found a ‘ tremendous crowd’ at the various ticket windows. Plaintiff husband became part of a long ticket line. He testified that he was assured by the ticket seller that the seats being assigned to him were ‘ pretty good’ and that they were ‘ back of the screen’, as he desired them to be. During this alleged discussion the plaintiff stood nearby but it is not disclosed whether she heard or paid any attention to it. The seats, it developed, were located in the upper stand, on the first base side of the diamond, but not behind the protective screen, being removed therefrom by about 15 or 20 feet. The husband testified that when they reached their seats the first game was in the sixth or seventh inning of play, that on discovering the seats were not in the protected area he got up but saw it was impossible to return to the ticket window to exchange the tickets because of the crowd coming down the aisle, so resumed his seat. A minute or two later, or about ten minutes after he and plaintiff had originally been seated, plaintiff was struck by a foul ball.

Plaintiff testified that she had never seen a baseball game prior to the one at which she was injured, that she knew nothing about it, that she had seen televised games but had seen no balls go into the stands on television.

That the husband was thoroughly familiar with this particular hazard is established by his testimony on cross-examination. He stated, ‘ There is a million foul balls, maybe three or four or five in an inning, goes into the stand.’

Negligence is the doing of that which a reasonably prudent man would not do under the circumstances, or the failing to do that which a reasonably prudent man would do under the circumstances. Smith v. Harwood Electric Co., 255 Pa. 165, 99 A. 473. It is never presumed, and the burden of proving it is on the plaintiff. To recover in a negligence action, a plaintiff must prove (1) a legal duty owing to him by defendant; (2) an unintentional breach of that duty by careless conduct; (3) a causal connection between defendant's conduct and plaintiff's injury. Furthermore, the plaintiff's case must not disclose that he voluntarily assumed the risk or was guilty of contributory negligence. The mere happening of an accident is no evidence of negligence. Thompson v. Gorman, 366 Pa. 242, 246, 77 A.2d 413.‘ One who maintains a ‘ place of amusement for which admission is charged, is not an insurer, but must use reasonable care in the construction, maintenance, and management of it, having regard to the character of the exhibitions given and the customary conduct of patrons invited:’ Haugh v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145.' Kallish v. American Base Ball Club of Philadelphia, 138 Pa.Super. 602, 603, 10 A.2d 831, 832.

Plaintiff contends that the legal duty owing her by defendant (which she claims was breached) consisted of ‘ exceptional precautions' toward its women patrons, many of whom are ignorant of the hazards involved in the game, and who are induced to attend by special invitation, as on afternoons when they are admitted free; that these exceptional precautions include extension of the screen coverage behind the batter's and catcher's positions to a wider area, still leaving ‘ a few sections' for patrons who prefer to watch the game from unprotected areas. In substance the argument is tantamount to a request for a holding that a baseball club must at its peril always have available a seat behind the screen whenever a patron requests one. The plaintiff has furnished no proof that the screening of a wider area would have resulted in her being seated within it, thus, by inference, precluding her injury. She and her husband found on their arrival that ‘ the place was packed’ with a ‘ tremendous crowd’ during the sixth or seventh inning of the first game. It was the crowded condition, according to her husband, which prevented his return to the box office to exchange the tickets. Assuming an enlarged area of screenage, it does not necessarily follow that the crowd which arrived earlier would not have occupied the entire bloc of protected seats but would instead have left two seats vacant for their occupancy. The Supreme Court of Minnesota was confronted with a similar problem in Brisson v. Minneapolis Baseball & Athletic Ass'n, 185 Minn. 507, 240 N.W. 903, 904. In holding that the management is under no duty to provide screened seats for all who desire them, regardless of the number of patrons present, the Court stated: ‘ In our opinion they [defendants] exercise the required care if they provide screen for the most dangerous part of the grand stand and for those who may be reasonably anticipated to desire protected seats, and that they need not provide such seats for an unusual crowd, such as the one in attendance at the game here involved.’ In general accord with this view are these cases from other jurisdictions: Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144; Brown v. San Francisco Ball Club, Inc., 99 Cal.App.2d 484, 222 P.2d 19; Keys v. Alamo City Baseball Co., Tex.Civ.App., 150 S.W.2d 368; Williams v. Houston Baseball Ass'n, Tex.Civ.App., 154 S.W.2d 874; Ratcliff v. San Diego Baseball Club, 27 Cal.App.2d 733, 81 P.2d 625; Blackhall v. Capitol District Baseball Ass'n, City Ct., 154 Misc. 640, 278 N.Y.S. 649, affirmed Blackhall v. Albany Baseball & Amusement Co., 157 Misc. 801, 285 N.Y.S. 695; Wells v. Minneapolis Baseball & Athletic Ass'n, 122 Minn. 327, 142 N.W. 706, 46 L.R.A.N.S., 606.

In this case, plaintiff produced no evidence tending to show that defendant's screening of certain sections of its grandstand deviated from that customarily employed at other baseball parks. The courts of this Commonwealth have adhered to general usage as a test of negligence with respect to methods and appliances employed in business and have held that in the absence of proof by plaintiff that defendant deviated from ordinary standards the question of negligence is not for the jury. See Mills v. Lit Brothers, 347 Pa. 174, 32 A.2d 10; Beck v. Stanley Co. of America, 355 Pa. 608, 50 A.2d 306; and Yearsley v. American Stores Co. 97 Pa.Super. 275. We discussed this principle in our recent decision in Blake v. Fried, Pa.Super., 95 A.2d 360, and because of its peculiar applicability to the present situation we repeat what we said, in this connection, 95 A.2d at page 364:‘ * * * plaintiffs adduced no evidence whatever as to the height of protective fences at other race tracks which the jury could use as a basis of comparison to determine whether or not defendants were negligent in not having erected a higher one. While customary methods do not furnish a conclusive or controlling test of negligence or justify a practice obviously laden with danger, they are nevertheless to be considered as factors of measurement of due care. Price v. New Castle Refractories Co., 332 Pa. 507, 3 A.2d 418; Moran v. Pittsburgh-Des Moines Steel Co., D.C., 86 F.Supp. 255, 267. A jury is not permitted to speculate or guess; conjecture, guess or suspicion does not amount to proof. Sharble v. Kuehnle-Wilson, Inc., 359 Pa. 494, 59 A.2d 58. Without a standard of comparison to use as a basis in their determination of the existence of negligence, the jury's verdict must be considered as representing mere conjecture, and their conception of a reasonable standard, formulated retrospectively, cannot be a legal basis for a finding of negligence. Hammer v. City of Philadelphia, 104 Pa.Super. 119, 122-123, 158 A. 659.’

No claim is made that the screen was defective in structure. The only question of defectiveness relates to the extent of coverage. It is of record that the screen protected almost all the seats in five sections of defendant's upper stand and practically all of five sections in its lower stand. There is no evidence to indicate the number of sets behind the protective screen. Provided with such meagre background of evidence, the jury were nevertheless...