Thompson v. Lowell, L. & H. St. Ry. Co.

• Decision Date: 01 April 1898
• Citation: 49 N.E. 913,170 Mass. 577
• Parties: THOMPSON v. LOWELL, L. & H. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 577

49 N.E. 913

THOMPSON v. LOWELL, L. & H. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

April 1, 1898

COUNSEL

C.A. De Courcy and Walter Coulson, for plaintiff.

J.P Sweeney, for defendant.

OPINION

ALLEN J.

St.1895 c. 316, authorizes street-railway companies to acquire, hold equip, and maintain real estate to be used for purposes of recreation and for pleasure resorts; the admission being free. By virtue of this statute the defendant maintained such a place on the line of its railway, which contained a large platform or stage for exhibitions. The defendant entered into a written contract with a manager, under which the latter furnished and managed various entertainments there, and, among them, an exhibition of marksmanship by a man born without hands. The defendant paid for advertising these exhibitions, and carried posters on its cars. The plaintiff, having seen an advertisement, was a spectator at an exhibition of marksmanship, having come on one of the defendant's cars. A butt was provided to receive the bullets. All the appliances were furnished by the manager or the performer, and nobody in the defendant's employment exercised any supervision or control over the performance. Immediately after a shot had been fired, something struck the plaintiff in the eye. It is not made plain just how the accident occurred, but on the evidence the jury might find that the plaintiff was struck in the eye by a small fragment of a bullet or other metallic substance which flew from the impact when the bullet hit the butt. There was no suggestion that he was not himself in the exercise of due care, or that he was not in the place provided for spectators. The defendant asked for an instruction to the jury that it "was not responsible unless the exhibition was in its nature such that it would necessarily bring wrongful consequences to pass, unless guarded against, and the defendant failed to exercise due care to prevent harm." The judge, instead thereof, instructed the jury that "the defendant was not responsible unless the exhibition was in its nature such that it would necessarily or probably cause injury to some person present under defendant's invitation, unless guarded against, and the defendant failed to exercise due care to prevent harm." The fact that the exhibition was provided and conducted by an independent contractor would not wholly relieve the defendant from responsibility, provided it was of such a kind that it would probably cause injury to a spectator, unless due precautions were taken to guard...