Ingerson v. Shattuck School ( 1931 )

¹ Reported in 239 N.W. 667. Appeals by defendant from the judgment in each of two cases.

One case is brought by Jennie Ruth Ingerson to recover damages for personal injury claimed to have been caused by negligence on the part of the defendant. The other case is brought by Clarence Ingerson, husband of Jennie, to recover for the loss of the services and companionship of his wife and for expense incurred by him for domestic servants to perform services in the home while his wife was incapacitated. There was a verdict for plaintiff in each case. Defendant moved for a directed verdict in each case at the close of the evidence, and thereafter moved for judgments notwithstanding the verdicts. The motions were denied.

Defendant is a corporation owning and operating a secondary school for boys of high school age at Faribault in this state. It has an attendance of about 250 students. Military drill is a part of the training, and games and athletic sports are conducted under the supervision of the school. The school has grounds for these games and sports.

On September 28, 1929, a football game was played on these grounds between the school football team and a football team from the State Teachers College of Mankato. The football playing field was marked out on the ground by white chalk lines, plainly visible, and was some 360 by 160 feet in area. There were between 200 and 300 spectators at the game. Sixty of these had paid an admission fee of 50 cents each. The balance of the spectators apparently were students and school employes, who were admitted free. The game was not an important one attracting much public interest. On one side of the playing field were some bleacher seats for spectators. The seating capacity is in dispute, but it was not large and the spectators were not required to occupy the seats. There was no fence or rope around the playing field. The game was not conducted for the purpose of any profit to the school. Any small receipts were no doubt to be applied on incidental expenses in connection with the games. The spectators were warned to stay outside of the playing field, outside of the chalk marks around the field, and generally did so. Just before the close of the game Mrs. Ingerson and other spectators were standing from two to five feet outside of the chalk line on the side of the field. A player of the Mankato football team, carrying the ball, was making an end run and was tackled by one of the Shattuck players a few feet inside the field line near where Mrs. Ingerson was standing. The two players tumbled over and rolled across the line and against Mrs. Ingerson's legs, resulting in a fracture of one leg.

1. Plaintiffs' claims rest on the proposition that the defendant was negligent in not fencing or otherwise protecting the playing field and in not warning spectators to stand farther back from the lines of the field. Both plaintiffs were among those who had paid admission to the grounds.

Plaintiffs seek to invoke the rules as to the care required of operators of dangerous amusement devices, such as roller coasters, and in the operation of theaters and the like. Ellingson v. World A. S. Assn. Inc. 175 Minn. 563,222 N.W. 335. They cite in addition to the Ellingson case, Wells v. Minneapolis B. A. Assn. 122 Minn. 327, 142 N.W. 706,46 L.R.A.(N.S.) 606, Ann. Cas. 1914D, 922, where a spectator was injured by a batted baseball; and Scott v. Michigan Athletic Assn. 152 Mich. 684, 116 N.W. 624, 627, 17 L.R.A.(N.S.) 234,125 A.S.R. 423, 15 Ann. Cas. 515, where a spectator was injured by the collapse of a grand stand. In each of these cases the injury was caused by some unsafe appliance or dangerous instrumentality. A batted or swiftly thrown baseball is dangerous and liable to injure anyone struck by it. Here the only instrumentality used was a football. Under all ordinary circumstances a football, even when kicked or thrown, is not likely to cause injury; neither was Mrs. Ingerson injured by a football. No case has been called to our attention where injury from coming in contact with the body of a football player has been involved. Under some circumstances liability for such an injury might perhaps arise. But we are concerned here with the broader question of whether defendant was negligent. The evidence shows that it was not customary at this school or at the smaller schools or colleges in that part of the state to fence or rope off the playing field. It was sometimes done when important games drawing large crowds were held. Inferentially such barriers were used more to keep the spectators off the playing field than for the purpose of protecting spectators. A rope around the field would not prevent players from rolling under it, and a fence in front of a spectator, if the players crashed into it, might result in greater injury than if there were no fence.

The defendant owed to plaintiffs the duty of exercising ordinary or reasonable care under the circumstances shown, the degree of care depending upon the situation shown. Klaman v. Hitchcock, 181 Minn. 109, 231 N.W. 716. There was no such dangerous situation or apparent danger as to require a high degree of care.

A person or party is not liable on the ground of negligence for an act or omission if it could not reasonably have been foreseen under the circumstances that such act or omission was likely to result in injury to anyone. A person is not liable for consequences which are merely possible, but only for consequences which are probable. 4 Dunnell, Minn. Dig. (2 ed. Supp.) p. 1096, § 7008, and the long line of cases cited in notes 25 and 26. The unfortunate injury to Mrs. Ingerson, under the circumstances here shown, was not one which the defendant reasonably could or did anticipate or foresee.

2. Mrs. Ingerson had attended three football games prior to this one. It is shown to be a more or less common occurrence for the football and for players to cross and go outside of the lilies of the playing field. Prior to the accident, that had happened a few times in this game. Defendant contends that Mrs. Ingerson's knowledge of the situation was such that she assumed the risk of any injury resulting. We do not so hold as a matter of law.

3. Negligence is charged on the ground that defendant failed to provide safe and proper seats for spectators. It is sufficient to say that it is not shown that Mrs. Ingerson sought to obtain one of the seats provided or requested to be provided with a seat, or that she would not have had a seat in the bleachers if she had gone there for that purpose. Her son was the captain of the Mankato team and was seated on a bench away from the bleachers, and she went there to be with or near him.

4. Negligence is also charged on the ground that the defendant failed properly to police and patrol the grounds. The athletic director of the school and other school employes were there. In the situation shown it was not negligence to fail to provide other police or patrol men at this game.

The judgments are reversed with direction to cause judgments to be entered in favor of defendant.