Thornton v. Me. State Agricultural Soc.

• Decision Date: 11 December 1902
• Citation: 53 A. 979,97 Me. 108
• Parties: THORNTON v. MAINE STATE AGRICULTURAL SOC.
• Court: Maine Supreme Court

53 A. 979

97 Me. 108

THORNTON

v. MAINE STATE AGRICULTURAL SOC.

Supreme Judicial Court of Maine.

Dec. 11, 1902.

(Official.)

Action by Minnie E. H. Thornton, administratrix of George W. Thornton, against the Maine State Agricultural Society, to recover damages for the death of her husband. The jury gave a verdict of $2,500 for plaintiff, and defendant moved for a new trial. Overruled.

Argued before EMERY, STROUT, SAVAGE, POWERS, PEABODY, and SPEAB, JJ.

E. B. Richards, W. H. Newell, and W. B. Skelton, for plaintiff.

G. C. Wing, for defendant.

SAVAGE, J. This is an action brought by an administratrix, for the benefit of the widow, under St. 1891, c. 124, which provides for the recovery of damages for the death of a person, when caused by the wrongful act, neglect, or default of another. The plaintiff recovered a verdict, which the defendant now seeks to have set aside, upon the usual grounds.

The following facts appear to be either undisputed, or proved by so much weight of evidence that a jury would unquestionably be warranted in believing them to be true: The defendant society was holding its annual fair at Lewiston during the first week in September, 1901. There were many exhibits of stock, agricultural products, and other articles. There was a track, and racing upon it. There were sports and shows of many kinds and descriptions. There was a "Midway" and a "Fakirs' Field." And all were upon the exhibition grounds of the defendant, and within a high inclosing fence. To gain admission to the grounds, a fee had to be paid, and these admission fees furnished a portion of the defendant's income. It also derived an income from the letting of space upon the grounds to the various exhibitors and showmen. Alongside the grounds of the defendant, on one side, were the tracks of the Maine Central Railroad. Between the railroad tracks and the fence before referred to was a wide platform for the accommodation of passengers who should arrive or depart by the railroad trains. This platform appears to have been upon railroad land, and outside of the defendant's grounds and it would seem that it was not built by the defendant, nor under its control. Gates opened from the platform to the exhibition grounds.

On Tuesday, September 2, 1901, the defendant let to one Harvey Slauenwhite, or White, a space of ground, part of lot No. 4, 12 1/2 feet by 30, for use as a shooting gallery during the fair. It was situated on the Fakirs' Field, and faced on one of the streets that went down through the Midway. The defendant gave White a receipt in the following language:—

"Maine State Fair. No. 4, lower. Renters' Receipt. Received of H. White six and 25/100 dollars for privilege of shooting gallery and dolls. Total rent, $12.50; due, $6.25. C. B. Bailey, for the Society."

It should be said that, along the fence by the railroad platform, the defendant, in letting space, reserved a passageway 6 feet wide. The space thus let to White butted upon this passageway, so that the end of White's lot towards the railroad platform was 6 feet distant from the fence and platform. The fence at that point was about 11 1/2 feet high, and the platform was about 4 feet from the ground. The fence boards were a little less than 1 inch thick.

After White contracted for this space, he set up, and thereafter operated, a shooting gallery on the lot. The shooting bench was placed 33 feet from the fence; and 25 feet from the shooting bench, towards the fence, two targets were so placed that, in shooting from the bench towards the targets, the gun would be aimed in the direction of the fence and railroad platform. One target was circular, and about 12 to 15 inches in diameter. The size of the other, which was the figure of a woman, is not given. The top of the targets was 5 feet and 3 inches from the ground. Back of the targets (that is, between them and the fence and platform) was an oak shield, 5 feet long horizontally, and 3 feet and 6 inches wide, and so fastened that its top was 6 feet and 2 inches from the ground. The thickness of the shield is not given, nor is it material in this case.

On Thursday, September 4th, at about 1 o'clock in the afternoon, the plaintiff's intestate was standing on the railroad platform, outside of defendant's grounds, about 10 feet from the fence. He was not in the rear of White's shooting gallery, nor in the direct range from the shooting bench to the targets. He stood a few feet—probably from 5 to 10 feet—southerly of such a range. The report of the discharge of a gun or rifle on the inside was heard, and he fell, shot through the aorta. Death was immediate. A freshly made hole, 8 feet from the ground, was found in the fence, in a direct line between the point where the deceased fell and the shooting bench of White's gallery. An examination of the evidence leaves no doubt in the minds of the court that the bullet which caused his death came from that gallery, and that in its course it passed diagonally from the bench to the fence, several inches higher than the shield, and several feet to the left of it. Just before the shooting, two or three women were seen shooting there, one of whom, at least, attracted attention by her inexperience in firing, or carelessness, or both. After the shooting, a thorough examination of the shooting gallery was made, and there were found there two Winchester magazine rifles, and no other guns or rifles. There were also found a number of boxes of the Union Metallic Cartridge Company's 22-caliber short cartridges, and no other ammunition. Tests afterwards made with these rifles and cartridges showed that a bullet discharged from one rifle at a distance of 33 feet penetrated through three pine boards, each seven-eighths of an inch thick, one pine board three-quarters of an inch thick, one spruce board an inch thick, and struck the wall beyond, while a bullet from the other rifle penetrated through the first four of the abovementioned boards, and was embedded in the fifth. It must be regarded, therefore, that at the time in question White was using in his shooting gallery deadly weapons, loaded with cartridges easily capable of producing a fatal result, and that he was then using no others, and that, in consequence of such use, plaintiff's intestate was killed. That such a proceeding was extremely dangerous to life and limb, and highly culpable on the part of White, is self-evident.

The defendant, however, disclaims any responsibility for the conduct or misconduct of White. It does so on two grounds: First, that the relation between itself and White was that of landlord and tenant; and, secondly, that it exercised reasonable care—all that the law, in any event, required—in keeping its grounds, including the space occupied by White, safe. Under the first ground, it invokes the familiar rule that a landlord is not responsible for negligent or tortious acts committed without his consent upon the leased premises by a tenant.

The defendant says that shooting galleries are among the usual concomitants of fairs everywhere, and that as such they are entirely proper; that, as usually conducted, they are not dangerous; that the bullets ordinarily used, known as "B. B.'s" and "C. B.'s," are manufactured especially for shooting-gallery purposes, of light weight, and in cartridges containing only a small quantity of powder or other explosive substance; that for such bullets the protection afforded by the shield at White's gallery was ample; that by its contract with White it only consented impliedly that the gallery should be operated in the usual manner and with the usual ammunition; and that it did not know of, or have the means of knowledge, and did not consent to, the manner in which the gallery was being used on the day in question. It claims that it was under no duty to the plaintiff "to warn him of hidden dangers which defendant had no means of knowing, and that it was not obliged to see if there were any such dangers." In short, it claims that "the accident resulted solely from the willful, unauthorized, and unexpected use of dangerous and improperly constructed cartridges on the part of its lessee, without knowledge of the defendant, and beyond its duty to prevent" In determining the soundness of the defendant's position generally, in regard to its duty to those whom it invited to attend its fairs, we do not think it is necessary to decide whether White was a tenant or a licensee for a specific purpose. The defendant's duties to the invited public were the same in either case.

The defendant was giving a great exhibition, to which the public, far and near, were invited. The fair to which the public were invited consisted not only of the racing of horses, and of the exhibition of live stock and agricultural and manufactured products and machinery or implements, which it may be supposed were more directly the objects of the society in holding the fair, but also of all the shows, exhibits, and attractions of all kinds recognized by the defendant, and permitted by it to have space upon its grounds. The fair was undoubtedly intended to be, in the matter of attractiveness, all things to all men. Some visitors would be attracted by one feature, others by another. All of these attractions tended to draw visitors to the fair, and to increase the income of the defendant, which took gate money from all. These attractions, no less than the defendant's own exhibits, constituted a part of the fair to which the public were invited.

It is too well settled to need the citation of authorities that, if the owner or occupier of land either directly or by implication induces persons to come upon his premises, he thereby assumes an obligation to see that such premises are in a reasonably safe condition, so that the persons there by his invitation may not be injured by them or in their use for the purpose for which the invitation was extended.

Therefore, having invited the public to its fair, it was the duty...