Scanlon v. Wedger , 156 Mass. 462 ( 1892 )

Allen, J.

The several plaintiffs were injured by the explosion of a bomb or shell during a display of fireworks in Broadway Square, which was a public highway in Chelsea. This display was made by the defendant Wedger, who acted under a license from the mayor and aldermen of Chelsea for a display of fireworks in Broadway Square on that evening, under Pub. Sts. c. 102, § 55. A verdict was returned for the defendant, and the jury made a special finding that the defendant in firing the bomb exercised reasonable care. The case comes to us on a report which states that if, on the facts contained therein, and on said finding, the plaintiffs are entitled to recover, the case is to be remitted to the Superior Court for the assessment of damages; otherwise, judgments are to be entered for the defendant. It is therefore to be considered whether it appears affirmatively that the plaintiffs were entitled to recover.

The plaintiffs apparently were present at the display of fireworks as voluntary spectators, and were of ordinary intelligence. No fact is stated in the report to show the contrary, nor has any suggestion to that effect been made in the argument. The plaintiffs have not rested their claims at all upon the ground that they were merely travellers upon the highway, or that they were unaware of the nature and risk of the display. The report says: “ A considerable number of persons were attracted to said square by said meeting, and said bombs and other fireworks which were being exploded there. ... A portion of the centre of said square, about forty by sixty feet, was roped off by the police of said Chelsea, and said bombs or shells were fired off within the space so enclosed, and no spectators were allowed to be within said enclosure. . . . The plaintiffs were lawfully in said highway at the time of the explosion of said mortar, and near said ropes, and were in the exercise of due care.”

The bombs or shells are described in the report, and they were to be thrown from mortars into the air, it being intended that they should explode in the air and display colored lights. They were apparently a common form of fireworks, such as has long been in use.

The ground on which the plaintiffs place their several cases is, that the Pub. Sts. c. 102, § 55, did not authorize the mayor and aldermen of Chelsea to license the firing of anything but rockets, crackers, squibs, or serpents, and that therefore the act of the defendant in firing bombs or shells was unauthorized and unlawful. It is not contended that it was at the time supposed, either by the defendant or by anybody else, that the license was insufficient to warrant the display which was actually made. The licensee was the chairman of a committee which had a political meeting in charge, and the defendant acted at the request of the committee, and was directed by them as to when and where to fire off the fireworks.

Under this state of things it must be considered that the plaintiffs were content to abide the chance of personal injury not caused by negligence, and that it is immaterial whether there was or was not a valid license for the display. If an ordinary traveller upon the highway had been injured, different reasons would be applicable. Vosburgh v. Moak, 1 Cush. 453. Jenne v. Sutton, 14 Vroom, 257. Conradt v. Clauve, 93 Ind. 476. But a voluntary spectator, who is present merely for the purpose of witnessing the display, must be held to consent to it, and he suffers no legal wrong if accidentally injured without negligence on the part of any one, although the show was unauthorized. He takes the risk. See Pollock on Torts, 138-144.

In the opinion of a majority of the court, the entry must be,

Judgments for the defendant.