Witherspoon v. Haft

Decision Date14 May 1952
Docket NumberNo. 32771,32771
Citation157 Ohio St. 474,106 N.E.2d 296
Parties, 47 O.O. 350 WITHERSPOON v. HAFT et al.
CourtOhio Supreme Court

Syllabus by the Court.

1. Customary conduct or methods do not always furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised.

2. Among such other circumstances to be so weighed and considered are any serious danger involved as a consequence of a defendant's conduct and the practicability of such defendant avoiding or guarding against such danger.

3. Where one rents bleachers to another for use at a football game and reserves the right to direct and supervise the erection of the bleachers and actually does erect them on the premises of such other and where it is contemplated by such parties that third parties will be invited by the occupier of the premises on which they are erected to use such bleachers and may be injured by any hazard involved in such use, the one so furnishing and erecting such bleachers owes to such invitee of the occupier of the premises the duty to exercise ordinary care in furnishing and erecting such bleachers.

4. Where such bleachers are so designed that there is nothing to prevent a spectator seated on the top row from falling backwards to the ground except the seat board for that top row, and such top row is located nine or ten feet above the ground, and where the seat board for such top row is not securely fastened so as to prevent its being pushed back by the movement of spectators in that row, and where it is apparent that any one of several simple and relatively inexpensive means could be adopted to securely fasten such top seat board, ordinary care in furnishing and erecting such bleachers may require that those, who have had extensive experience and familiarity with bleachers of such design and who furnish or construct such bleachers for use by spectators at a football game, provide some means to securely fasten such top seat board, although those so furnishing or constructing such bleachers have no actual knowledge of any previous injury due to failure to so fasten such top seat boards and although bleachers of such design have been and are customarily used for seating at such football games without such fastening of such top seat boards.

5. Where the evidence justifies findings, that the occupier of premises did not know of the hazard involved in the use by his invitees of bleachers furnished to him and erected by others and that such occupier did not have a reasonable opportunity to learn of or guard against such hazard, the voluntary conduct of the occupier of the premises in inviting spectators to use such bleachers will not as a matter of law break the chain of proximate causation which may otherwise exist between an injury to such a spectator resulting from such hazard and the negligence of those who so furnished and constructed such bleachers.

6. Where bleachers are owned by one party and there is evidence of an understanding between that party and another party, under which the first party has fixed the price to be charged for the use of such bleachers, and the second party is to have supervision of their erection and removal and of employment of those necessary to erect and remove them and is to pay all expenses in connection with their erection and removal, and the net proceeds from the rental after payment of expenses is to be divided equally between the two parties, reasonable minds can come to the conclusion that, in furnishing such bleachers and erecting them, such parties are engaged in a joint enterprise.

This is an action instituted by plaintiff against the defendants, Haft and Turner, to recover for personal injuries received by the plaintiff when he fell from the last and highest row of certain temporary bleachers while watching a high school night football game.

The bleachers consisted of 15 rows of seats, rising from the ground to a height of between nine and ten feet. There was for each row a board upon which the spectators could sit and, except for the bottom row, a lower board in front of that upon which their feet could rest. Above the board for their feet and immediately in front of that board for their feet was the next lower board for sitting. The seat boards rested in U-shaped metal seat irons or seat brackets, having a horizontal base of nine and one-half to ten inches, equal to the width of the seat boards, and having perpendicular uprights or sides of approximately one inch in height for the purpose of holding the seat boards in place. These seat brackets were about one inch wide and screwed to wooden risers. One end of each riser was at the ground and the other end supported the seat bracket for the topmost seat board. The seat boards were approximately one to one and one-half inches thick, nine and one-half to ten inches wide, and 15 to 18 feet long. The risers were about four feet apart. Each seat board extended across four risers and overlapped the adjacent seat board at the point at which the ends of the two boards rested on a common seat bracket. At this point, one board overlapped the other by 12 to 14 inchs. The bleachers were so designed that the seat boards would rest between the upright ends of the U formed by the seat brackets. There were no clamps or other devices to hold the seat boards in place. The bleachers were so designed that spectators in all seats except the top row were protected from falling backwards by the next row of footboards as well as the next row of seats. However, in the event that the top seat board was removed, there was nothing to prevent spectators in that row from falling backwards to the ground. There was nothing to prevent the top seat board from being pushed backwards except the rear one inch upright portions of the four U brackets supporting that seat board.

Plaintiff was seated on one of the top seat boards, which lapped over an adjacent seat board. There was an exciting play during the game. The spectators stood up suddenly to watch the play. When they did that, this seat board was pushed backward, thereby removing anything to prevent those located at or near where the plaintiff had been sitting from falling backwards to the ground. The plaintiff did so fall and received the injuries for which he seeks to recover.

At the conclusion of all of the evidence, the Common Pleas Court directed the jury to return a verdict for the defendants and judgment for the defendants was thereafter rendered on that verdict.

On appeal to the Court of Appeals that court reversed the judgment of the Common Pleas Court and remanded the cause to that court for a new trial.

The cause is now before this court on appeal from the judgment of the Court of Appeals, a motion to certify having been allowed.

Wright, Harlor, Purpus, Morris & Arnold, Columbus, for appellant.

Herbert & Dombey, Columbus, for appellee.

TAFT, Judge.

The first question to be considered is whether the evidence was such that reasonable minds could come to the conclusion that defendants, in supplying these bleachers, were negligent in either of the two respects specified in the third amended petition, upon which the case was tried.

As to the second specification of negligence, there is no evidence in the record that 'defendants were notified that [in] their type of bleachers and that in their method of constructing and installing the same, the said top seat plank would slip out and off of the braccket.' (Emphasis added.)

This leaves the charge that defendants were negligent only in that 'the board or timber upon which plaintiff and others were seated had not been securely fastened to the tread of the supporting timber upon which it rested.'

It is manifest that there was a hazard to one seated in the top row of the bleachers which was not found in any other row of seats. If a seat board in any other row was removed, the spectator seated in such row would probably not receive a serious fall, because he would be protected by the seats behind him. On the other hand, if the seat board on the top row slipped back, there was nothing to protect a spectator in that row from falling backward to the ground, which was a distance of approximately nine to ten feet below that seat board.

The only thing to prevent the seat board in the top row from being pushed back would be the rear one inch upright portion of the U brackets upon which that board rested. Pictorial exhibits of these bleachers disclose that no seat board was supported by more than four of these brackets. Furthermore, the seat board upon which plaintiff had been sitting overlapped the next seat board. It is apparent, therefore, that the rear one-inch upright portion of the U bracket, at the point at which plaintiff's seat board overlapped the adjoining seat board, could have no effect in preventing his seat board from being pushed back. This conclusion necessarily follows from the evidence that the seat boards were from one to one and one-half inches thick whereas these upright portions of the brackets were only one inch high. Also, it would not be unlikely for this overlapping of a seat board to prevent that seat board from being held securely by the rear one inch upright portion of the next U bracket, which was only four feet away. The only thing, to prevent further upward movement of the seat board upon which plaintiff had been sitting above the rear one-inch upright portion of any of the U brackets, was the weight of that board or the weight of those seated upon it. It is apparent also that the excited movements of spectators jumping up to see a play might well cause such further upward movement of this seat board above the rear one-inch upright portions of the U brackets.

In our opinion, reasonable minds could...

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