Williams v. Mineral City Park Ass'n

• Citation: 102 N.W. 783,128 Iowa 32
• Parties: NELLIE WILLIAMS, Appellant, v. THE MINERAL CITY PARK ASSOCIATION, Appellee
• Decision Date: 08 March 1905
• Court: United States State Supreme Court of Iowa

102 N.W. 783

128 Iowa 32

NELLIE WILLIAMS, Appellant, v. THE MINERAL CITY PARK ASSOCIATION, Appellee

Supreme Court of Iowa, Des Moines

March 8, 1905

Appeal from Webster District Court.--HON. J. R. WHITAKER, Judge.

ACTION at law to recover damages on account of personal injury. Verdict and judgment for defendant, and plaintiff appeals.

Affirmed.

M. E Mack and J. B. McCrary, for appellant.

Healy Bros & Kelleher, for appellee.

OPINION

WEAVER, J.

The defendant association is a corporation under whose management and direction a place or field for public amusement has been established at or near the city of Ft. Dodge, Iowa. Within this inclosure is erected a so-called "grand stand" or amphitheater containing benches or seats for the accommodation of the people attending the races and other exhibitions there given. Over the central portion of this amphitheater, at a height of some twenty-five feet, is a platform intended to be occupied by a band of music. This platform was inclosed by a rail two by four inches in size extending around the four sides about three and one-half feet from the floor. On three sides, near the rail, were benches for the accommodation of the musicians. Except as described, the platform was inclosed by no barrier or netting to guard against the fall of any substance or article from the platform upon the audience seated below. An entrance fee was collected from visitors for admission to the grounds and an additional fee for a seat in the amphitheater. Upon the day in question certain races had been provided by the defendant, to which, by the usual methods of advertising, the public was invited. The plaintiff attended the entertainment paid the usual charges for admission to the ground and to the amphitheater, and was given a seat below the band platform. While sitting in the place thus provided, and without any apparent fault on her part, a quart bottle was dropped or fell from the platform upon the head of the plaintiff, resulting, it is alleged, in her serious injury. The plaintiff's petition sets out these facts, and charges the defendant with negligence (1) in constructing the platform without netting or other barrier to guard against such injuries to persons seated below; and (2) in giving the plaintiff a seat under said platform, when, in the exercise of due care, it should have known and provided against the danger to which she was thus exposed.

There was evidence tending to show that on one or more occasions during the day, and prior to the accident, bottles of some kind had been seen upon the platform floor, and it is the theory of the appellant that the bottle by which she was hurt rolled or was in some manner crowded or pushed from said floor. No one testifies to seeing anything of this kind, but it is sought to be inferred from the facts above stated. On the other hand, a witness for the defendant testifies to having seen a member of the band pick up from the floor two quart bottles, and in attempting to hold them on the rail with one hand, while he reached for a third with the other hand, a bottle slipped from his grasp, and fell over the rail. The witness, who was also a member of the band, immediately went below, and learned that plaintiff was injured, evidently by the bottle which he had seen fall.

I. Appellant's counsel have given considerable attention in argument to the measure of duty incumbent upon the defendant to provide and care for the safety of persons attending its exhibitions, to which the public is invited. For the purposes of this case, most of the propositions advanced on this subject may be admitted. We find, however, by reference to the record, that, generally speaking, the trial court adopted the theory now contended for as regards the law of negligence, and instructed the jury accordingly. For instance, it is the claim of counsel that due care on part of the defendant required the inclosing of the space between the rail above referred to and the floor of the platform with boards, or netting, or other barrier, and that such protection, if provided, would have prevented the accident to plaintiff. Now, the trial court distinctly instructed the jury that, if ordinary care for the protection of the people below required the use of any such device, the failure to provide it was negligence, and if, by reason of such negligence, plaintiff was injured, she was entitled to a verdict. This instruction seems fairly and fully to cover the entire contention of the appellant on this branch of the case. It is not, and could not well be, intended that the failure to provide the barrier was negligence as a matter of law. If that be true, the court could do no more than to instruct, as it did instruct, and leave the question to the determination of the jury. The jury found the fact against the plaintiff, and we cannot say that the verdict is without support in the testimony.

II. It is further claimed that defendant was negligent in failing to exercise such care and control over the use and occupancy of the band platform as was required for the safety of persons seated below. There is evidence tending to show that dealers in various kinds of liquids were permitted to carry their wares to persons on the band platform, and that bottles of such kind were seen on the floor; and it is said that due care on the part of defendant required it to keep the platform clear of such obstructions. In this, as in respect to the other charge of negligence, we have to say that the question thus presented was for the jury, and was fairly submitted to their consideration.

It is argued that an instruction which told the jury that defendant would be liable for the negligence of its officers is erroneous, because it did not refer to the acts of its agents, servants, and employes, as well as its officers. The instruction being unquestionably right as far as it went, and plaintiff having failed to call the court's attention to the further proposition now suggested, there is no ground to allege error. Wimer v. Allbaugh, 78 Iowa 79, 42...