Thornton v. Ionia Fair Ass'n

• Decision Date: 10 December 1924
• Docket Number: No. 31.,31.
• Citation: 200 N.W. 958,229 Mich. 1
• Parties: THORNTON v. IONIA FAIR ASS'N.
• Court: Michigan Supreme Court

229 Mich. 1

200 N.W. 958

THORNTON

v.IONIA FAIR ASS'N.

No. 31.

Supreme Court of Michigan.

Dec. 10, 1924.

Error to Circuit Court, Ionia County; Orien S. Cross, Judge.

Action by Ernest Thornton, an infant, by Maggie Ammon, his next friend, against the Ionia Fair Association. Judgment for defendant on a directed verdict, and plaintiff brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Watt & Colwell, of Ionia (F. C. Miller, of Ionia, of counsel), for appellant.

Fred L. Vandeveer, of Detroit, for appellee.

STEERE, J.

The Ionia Fair Association, defendant, was an unincorporated voluntary association composed of business men of Ionia. Its officers were a president, secretary, treasurer, and a general manager. For eight years prior to 1922 it had annually arranged for and held an exposition during August, known and advertised as the ‘Ionia Free Fair.’ Besides exhibitions of farm and fancy stock of all kinds, industrial and mechanical appliances of various descriptions, horse races, fancy riding and driving, etc., the occasion was made more attractive by vaudeville acts, pyrotechnic displays, and other special features. It was held at a public park in the city of Ionia called the ‘Fair Grounds,’ which was owned by the city and generally used throughout the year as a city park free to the public for such recreation as public parks customarily afford. There was an inclosed race track upon one portion, with a grand stand on the north side of it, opposite which and within the race track was an inclosure with a woven wire fence about 5 feet high along the north side of the track. This entrance was built by the association in 1920 for baseball and other entertainments.

The association had the use of the park for its fair purposes, and held its annual free fair there on August 15 to 18, 1922. General notice that it would be held was given by attractive posters and advertisements in newspapers telling, amongst other things, that on each night there would be a fireworks display of an historic spectacle known as Montezuma given by a fireworks company from Chicago, which would take place opposite the grand stand on the fair ground within the inclosure within the race track.

When this fair was held plaintiff was just past 14 years of age, living on a farm with his grandmother about five miles from Ionia. His father was dead, and he had not seen his mother since she left them when he was about a year old. He had lived some two or three miles from Ionia with his father prior to the latter's death in 1919 and had been taken by him to Ionia on Saturdays. On such occasions he had gone with him to the park for picnics and other recreation, where he was left free to play around the grounds as he saw other children do. He testified that he had attended the free fair with his father, and been within the race track inclosure in front of the grand stand. He had finished five grades in a common school education, and no claim is made that he was in any way mentally or physically defective, or not a normal boy for his age. He had seen the posted notices and read in the papers of the free pageantry spectacle of Montezuma to be given each night of the free fair, in which it was stated that ‘tons of high explosives and fireworks devices are required for the volcanic eruptions, earthquakes and bombardment which accompany the battle scenes.’ On the afternoon of the first day of the fair, he started on foot for Ionia to see the fireworks, telling his grandmother he would be home that night. He caught a ride part of the way, arriving there about 4 o'clock. In the evening after dark he saw the Montezuma pageantry and accompanying fireworks. After they were over he looked around to see if he could get a ride home but, not finding a chance, went over to the horse barn back of the grand stand and slept there that night on some hay. He testified that he got up the next morning about 6 o'clock and started to go home, but concluded he would go over to the inclosure where the display took place ‘and see the rigs for the fireworks.’ To get there he climbed a board fence, went around the end of the grand stand, across the race track, and climbed over the wire fence into the inclosure opposite it. He then looked around and saw, as he stated, a ‘long string of small firecrackers and picked them up; I saw another one there, a firecracker, larger one, I picked that up. I put them inside my overall bib. I was going to take them home to show the folks.’ He further described the string of explosives he picked up as about four feet long, tied at one end to a string on a post and wrapped up in tissue paper; ‘they had a fuse on them; they were connected together. They read, I think, ‘torpedoes.” He described the large firecracker he had picked up as ‘long and round, it was about four inches high and about three inches through,’ with a string around it and a fuse of which the paper was burned on the end. After picking up these articles and putting them in his bib, he started for home. On his way he met a young man named Erridge, whom he knew, and while they were talking showed him the fireworks he had picked up. Erridge looked over the string, took one of the explosives off, lit it with a match, and threw it in the road, where it exploded with a puff of smoke, and said the big explosive plaintiff showed him was a common firecracker. Plaintiff soon went on towards home until he got to ‘Prairie Creek,’ where he said he concluded to get rid of the ‘big one’ because he couldn't get it is his pocket, and thought he ‘would light it to see what it would do.’ He then stood it on end in the road, lit the fuse with a match, and stood back some 10 or 15 feet. He waited, as he said, what seemed quite a while to him, then he went to pick it up, saying of what followed:

‘I was going to take it and throw it in the creek so nobody would get hold of it. Just as I picked it up it exploded, went off. * * * I had put the explosive in the middle of the road; the next thing I knew I was rolling in the ditch. * * * Then I came to, I got up and looked at my hand, and then I run over to Mrs. Schriner's hollering for help and she came out. I sat down on the well curb. They had a cistern there. I sat down on the curb, and she washed my hand and called a doctor.’

The doctor testified that when he arrived at Mrs. Schriner's plaintiff was on the back porch with his left hand bleeding badly. He found three fingers of that hand seriously mutilated; the cords were all bruised and laying at different angles ‘and bone was off.’ He also found a bruise on the boy's throat and noticed that he breathed with some difficulty. The doctor dressed his hand and took plaintiff to Grand Rapids, where he was cared for in a hospital for some time. He lost the three mutilated fingers, and it was found necessary to resort to skin grafting before the wound fully healed.

This action is planted on the theory of negligence in leaving dangerous explosives accessible to children without taking proper precautions to safegard them as the law requires. Defendant's direct liability is predicated on the proposition that it was primarily responsible for the fireworks display which required the use of dangerous explosives, and its duty to furnish proper protection could not be evaded by turning the matter over to an independent contractor.

Defendant pleaded the general issue, and at close of the testimony its counsel asked a directed verdict on the ground no actionable negligence was shown because plaintiff was guilty of contributory negligence, the display was given by an independent contractor in control of the fireworks and equipped therefor, the place where it was given was inclosed and withdrawn from the public, and plaintiff was a trespasser when he invaded the inclosure and secured the instrumentality by which he injured himself.

In its contract with the fireworks company, which had control of the exhibit and furnished the explosives, defendant agreed to provide the company police protection during the engagement. To that end it employed a night watchman who was on duty there from 7 o'clook in the evening until after 5 o'clock the next morning. The inclosure inside the race track where the exhibit was given had been fenced in for exhibition purposes, and men in charge of the fireworks had their tents within the outer inclosure of the race track where they kept their explosives and equipment convenient to the place of exhibit, some of them sleeping there. Plaintiff testified that when he got up that morning he saw people around on the fair grounds, but that when he went around back of the grand stand and climbed over the two fences to get into the place of exhibit there was no one in sight.

Whether, under the conditions shown, negligence can be imputed to defendant for not more closely guarding the inclosure against invasion at that time of day by a youth 14 years of age, and, if so, whether his own negligence caused or contributed to the injury and barred recovery, are the questions involved. At close of the testimony the court directed a verdict in favor of defendant on the ground of plaintiff's contributory negligence. Plaintiff's counsel particularly urge in support of their claim of freedom from contributory negligence that he was a country boy...