Smith v. Benick

• Decision Date: 28 June 1898
• Citation: 41 A. 56,87 Md. 610
• Parties: SMITH v. BENICK (two cases).
• Court: Maryland Court of Appeals

41 A. 56

87 Md. 610

SMITH v. BENICK (two cases).

Court of Appeals of Maryland

June 28, 1898

Appeal from court of common pleas.

Actions by Mary Benick and another against Joseph P. Smith, and by Louis Benick, her husband, against the same defendant, to recover for personal injuries sustained by Mary Benick. Verdict and judgment for plaintiffs, and defendant appeals. Reversed.

Bryan J., dissenting.

Argued before MCSHERRY, C.J., and BRYAN, BRISCOE, BOYD, FOWLER PAGE, and PEARCE, JJ.

Steele Semmes, Carey & Bond and Geo. D. Penniman, for appellant. William Colton and Howard Tebbs, for appellees.

PAGE J.

The appeals in these cases are taken from judgments in favor of the appellees for injuries to Mary Benick alleged to have resulted from the negligence of the appellant in conducting a balloon ascension. The appellant was the lessee of a tract of land near Baltimore city. He had filled it up, as a pleasure resort, with bowling alleys, shooting gallery, and restaurant, and, besides, furnished various other attractions, such as fireworks, acrobatic performances, and other things of a like nature. These were extensively advertised, so that many persons were drawn thither; the daily attendance on week days averaging from 1,000 to 1,500 persons, and three times that number on Sunday. The proprietor charged no fee for admission, but relied for his profits from sales, the hiring of boats, and the rentals of places for carousal, shooting gallery, etc. Among other things designed to attract visitors were the balloon ascensions, and it was at one of these that Mrs. Benick was injured. The ascension that day was conducted by a man named Hanna, who was an experienced and competent balloonist. Under his agreement with the appellant, "Hanna was to furnish and pay for all the material and appliances used in making the ascensions, and, in addition thereto, was to employ and pay all of the men required to conduct the ascensions" and the appellant was to have no part to perform, except to furnish the field, pay the price, and name the hour for the ascension. The method of the ascension was that usually adopted: Two poles of proper height were first erected, and maintained in position by guy lines. A rope passed from the top of one pole to that of the other, and from this, by means of a loop, the balloon was kept in position while being inflated. When it was filled, the rope was loosened from one of the poles, and allowed to slip over the top of the balloon, thus releasing it. When the rope over the balloon (called the "ridge rope") is loosened, one of the poles falls to the ground. A guard rope, intended to keep the people off, is placed around and about the balloon. There was evidence that the guard rope inclosed a space on this occasion, about the balloon, in the shape of the lid of a coffin, so that, if the supporting poles did not fall in the larger portion of the space, they were of such length that, of necessity, they would fall outside. On the occasion of the accident the pole had fallen without causing injury (whether it fell inside of the inclosure or not there was no proof to show), and it was while the effort was being made to re-erect it that it fell, striking a carpenter's horse, and, bounding therefrom, injured Mrs. Benick.

By the terms of the contract already stated, the relation of Hanna to the appellant was that of an independent contractor. He was free "to exercise his own judgment and discretion as to the means and assistants he might think proper to employ about the work, exclusive of the control and direction in this respect" of the appellant. Deford v. State, 30 Md. 203. So regarding him, the general rules applicable are well settled: First, where an owner and proprietor of land employs a competent person to do work which of itself is not a nuisance, or of which the necessary or probable effect would not be to injure others, and such person is an independent contractor, the employer is not responsible for such negligence as is entirely collateral to, and not a probable consequence of, the work contracted for. Cooley, Torts, 547; Water Co. v. Ware, 16 Wall. 566; Deford v. State, supra; Railway Co. v. Moores, 80 Md. 348, 30 A. 643; Randleson v. Murray, 8 Adol. & E. 109. And, secondly, when a person is on the premises by invitation it is the duty of the occupant and owner to exercise due and reasonable care that his premises shall be reasonably safe, and that no concealed perils shall environ the visitor while he himself is acting in the exercise of due and reasonable care. Cooley, Torts, 718; Sweeny v. Railroad Co., 10 Allen, 372; Bennett v. Railroad Co., 102 U.S. 580; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257; Davis v. Society, 129 Mass. 367. These rules are succinctly stated in Pickard v. Smith, 10 C. B. (N. S.) 470, as follows: "If an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable. *** The rule, however, is not applicable to cases in which the act which occasions the injury is one which the contractor is employed to do; nor, by a parity of reasoning, in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfillment, whereby the injury is occasioned." The accident in this case is not attributable to any defect in the plan of ascension, nor to anything growing out of what was intended or was likely to occur in the usual process of sending up the balloon. The cause of it, the record shows, was proved to be as follows: "On the afternoon of the accident, August 29, 1895, the balloon was in process of inflation, and the two supporting poles were in position, when a violent thunder gust came up, and so disarranged the balloon as to cause it to veer over, and permit a supporting pole to fall to the ground, delaying the ascension, but causing no injury, and no proof was offered tending to show that the pole fell without the ropes. In order to get ready for a new inflation of the balloon after the thunder gust ceased, it became necessary to re-erect the fallen pole. A carpenter's horse was placed under it, at convenient stages, to support it in the elevation. When the top of the pole was at a height variously estimated from six or eight inches to five or six feet higher than the horse, it fell, striking the horse in its descent, which it probably upset, and slid or bounded to the ground. As it struck the ground, it either fell or bounded on the heel of the plaintiff Mary Benick, causing the injury complained of." It is not contended there was anything in the sending up of the balloon, or in the needed equipment for such an event, that created concealed dangers, from which it became the duty of the proprietor to shield the careless or unwary by the exercise of extraordinary precautions; and there is nothing in the record to show that, in the appointed and usual method of ascension, there was anything dangerous to persons using reasonable care. It is clear, however, from the admitted facts, as we have quoted them from the record, that Mrs. Benick received her injury in consequence of circumstances which did not involve the safety of the ordinary method. The poles had fallen without damage, and the operator then introduced, of his own accord, without the knowledge of the appellant, a new appliance, not contemplated by the usual method,--that is, a carpenter's horse,--and certainly not within any consent or agency of the appellant. If it was careless to make use of the horse, or if Hanna or his agents were guilty of carelessness in the manner in which it was used, the appellant cannot be held liable; it being shown that Hanna was an independent contractor.

The cases of Conradt v. Clauve, 93 Ind. 476, and Railway Co. v. Moores (Va.) 27 S.E. 70, relied on by the appellee, are distinguishable from this case. In the former the defendant was proprietor and manager of the fair grounds. Parts of the ground were allotted to target shooting. The plaintiff, being ignorant of the danger hitched his horse where it was shot. Here was the concealed danger. The plaintiff was entitled to notice of it, for the reason that the defendant, in the discharge of his duty to make the place reasonably safe to those who came on his ground by invitation, was bound to notify them of dangerous places, and that not to do so was negligence. In the other case cited there was no guard rope, and no notification made that the poles would fall when the balloon went up. In Knottnerus v. Railway Co., 93 Mich. 348, 53 N.W. 529, a person was injured while on a roller coaster. It was said in the opinion of the court: "A roller coaster is not a snare or an explosive. It is, in and of itself, notice of its character and purpose. Its presence and operation involve no danger to those who keep away from it, nor does its enjoyment necessarily involve injury. It cannot be said that, by granting permission to operate a switch-back at North Park, the defendant was guilty of negligence. *** They do not thereby become insurers of the persons while in attendance upon the attraction, or responsible for the carelessness of the operators." This case is cited as being...