Richmond & Manchester Railway Co. v. Moore's Adm'r

Harrison, J..

delivered the opinion of the court.

The defendant in the court below, was a street railway company, running its cars from the city of Richmond through the city of Manchester, and about two miles beyond it, to a place known as “Forest Hill Park.” This park was owned by the defendant, was under its control ana management, was kept open to the public, and was made attractive in various ways to induce people to make it a pleasure resort and thereby gain patronage for the street rail way. The defendant employed and paid one Peter Blum to go upon its park premises on the 11th, 13th, and 15th days of July, 1893, and make three balloon ascensions. The defendant advertised these performances in the newspapers, by handbills, and otherwise, and in this manner extended to the public an invitation to visit its premises and witness the balloon ascensions. This invitation drew a large crowd to rhe defendant’s premises on the evening of July 15, 1893, including many children, and among them the plaintiff’s intestate, a little boy eight years and six months old. In arranging for tue balloon ascension, two poles, each about forty feet long, were placed in an upright position, fifty feet apart, and secured by guy ropes attached to stakes driven in the ground. A rope was run from the top of one pole to the top of the other, and the balloon was swung to this rope until inflated and ready to ascend, when the guy ropes were released and the poles were thrown down. The evidence shows that the crowd generally knew nothing of the danger they would be in from the falling of the poles, and supposed the poles were fixed and stationary; that the grown people as well as the children had crowded around the poles watching the inflation and other preparations for the ascension. As the balloon was about ready to go up, Blum made some effort to clear a way for the first pole to fall, and a signal was given to “loolc out" The people took this to mean that the balloon was about to go up, and it created great excitement, stirring about, and running for better points of view. At this juncture the pole was released and fell, striking the plaintiffs intestate on the head and killing him.

The principles of law upon which the right of recovery rests in a case like this are well settled. Mr. Cooley, in his work on Torts (2d ed.), p. 718, says: “It has been stated on a preceding page that one is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.

In the more recent work of Bus well on Personal Injuries, the law is well stated in section 66, as follows: “If a person enters upon the premises on business to be transacted with the owner or occupant thereof, or by the procurement of the owner or occupant; and, being himself in the exercise of due care, is injured by reason cf the unsafe condition of the premises o»* the approaches thereto, such unsafe condition being known, or such as ought to have been known, to the owner or occupant, the latter will be answerable in damages for such injuries.” And in section 70, he says: “It is apprehended that the responsibility of the owner or occupant of land or buildings is the same towards persons enteriug his premises, whether these come upon business to be transacted with the owner or occupant, or at his solicitation, or upon his mere invitation, since, in any of these cases, the entry is by his procurement or inducement, and not by his mere acquiescence or against his will.” These principles are supported by numerous adjudications. Nichols Adm’r v. W. O. & W. R. R. Co., 83 Va. 99; Davis v. Central Congregational Society, 129 Mass. 367; Curtis v. Kiley, 153 Mass. 123; Powers v. Harlow, 53 Mich. 507.

The first assignment of error is to the .action of the court in overruling the demurrer to the amended declaration. This was not error. The declaration states a good cause of action under the authorities cited. It contains every requisite allegation in such a case, and the facts which constitute the cause of action are so fully set forth that they cau be easily understood by the defendant, by the jury in ascertaining the truth of the allegations, and by the court in giving judgment, 1 Chitty’s Pl. 256; Jones v. O. D. C. M., 82 Va. 148.

The chief ground of objection to the declaration is that it does not allege how the plaintiff’s intestate went to the park, whether he walked or rode, how he was there, whether as a passenger over the defendant’s railway, as a licensee, or as a trespasser. It is immaterial how the deceased went to the park, whether he walked, w ent on the street cars, or by some other mode of conveyance. The gravamen of this action is the negligent failure of the defendant to use proper care to protect the deceased from a danger on its premises while he was there at the defendant’s invitation. This is the plaintiff’s case and the issue the defendant had to meet, and is fully and clearly set forth in the declaration, with all necessary narration of the circumstances.

The second assignment of error is to the action of the court in giving its instructions, and in refusing or modifying certain instructions offered by the defendant. All that was proper to be given in those instructions asked for by the defondant and refused by the court, was fully covered by the nine instructions given by the court, which present every legal proposition arising on the issue to be tried by the jury; and, without approving the entire accuracy of each of the instructions given, it is sufficient to say that the defendant was not prejudiced thereby, all of its rights having been liberally guarded and protected.

One of the instructions asked for by the defendant and refused was the basis of an earnest contention in argument that the balloon ascension was made by Peter Blum as an independent contractor, and that the defendant was therefore not responsible for his negligence. Blum was not exercising am independent employment on the occasion in question, but if/ he had been, that fact would not have affected the~responsibility of the defendant or relieved it from the duty of exercising due care in keeping its premises reasonably safe for those persons it had invited to come upon them. Buswell on Personal Injuries, sec. 66.

In the case of Curtis v. Kiley, 153 Mass. 123, the plaintiff sued the defendant laud owner for injuries received by falling into a trench in the yard. The land owner made defence on the ground that the trench and yard were in the control of an independent contractor, who was laying drain pipes therein for the defendant. The court, however, ruled against this defence, holding in its opinion as follows: ¥e think that the case falls within the rule that when the owner of premises Vihieh are under his control employs an independent contractor to do work, upon them, which, from its nature, is likely to render the premises dangerous to persons who may come upon them by the invitation of the owner, the owner is not relieved by reason of the contract, from the obligation of seeing that due care is used to protect such persons. The owner cannot continue to hold out the invitation without being bound to exercise due care in keeping the premises reasonably safe for use according to the invitation.'’

The refusal of the court to set aside the verdict as contrary to the latv and the evidence constitutes the defendant’s third assignment of error. The verdict of the jury is fully sustained by the evidence, and there being no error to the prejudice of the defendant in the instructions given, this motion was properly overruled.

Tor these reasons the judgment of the Circuit Court must be affirmed.

Affirmed.

Rehearing applied for and refused.