Kavafian v. Seattle Baseball Club Ass'n

On Rehearing.

[Bn Banc. May 31, 1919.]

Per, Curiam.

Upon a rehearing of this case, a majority of the court is of the opinion that the conclusion arrived at in the Departmental opinion is incorrect. The facts in the case show that the respondent entered the grand stand, owned and operated by appellant, during the progress of a baseball game; that he was familiar with the manner in which baseball games are conducted, having been a frequent spectator thereof; that the grand stand had a screen in front of a portion of it, back of the home plate, and that in this screened portion there were a great number of vacant seats, any of which he was entitled to take under his admission ticket; that he voluntarily took a seat outside of the screened area; and that, having gone there to see a baseball game, it must be true that, before many minutes had elapsed, he became conscious of the fact that between him and the balls no screen existed, if he was not aware of that fact at the very moment of taking his seat. Conscious of the fact that balls are very often hit “foul,” and that wild throws sometimes result in the ball falling among the spectators, and conscious of the fact that there was no protection between the balls and himself, he continued to occupy a seat in that unscreened portion until he received his injury.

It matters not whether one designates his act in this regard contributory negligence or views it as in the nature of assumption of risk, the result is the same. The place in which he could have taken a seat would have fully protected him against the ordinary and usual hazards incident to witnessing the game in. question, but he chose to sit elsewhere and substitute for that safety the compensating facility of vision. If there was a chance of danger, the respondent voluntarily took it. Having purchased a ticket which offered him a choice of two positions, he, with full knowledge of the risk of injury, chose the more dangerous position. The view here expressed would seem to be supported by the following cases: Blakeley v. White Star Line, 154 Mich. 635, 118 N. W. 482, 129 Am. St. 496, 19 L. R. A. (N. S.) 772; Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. 301, 153 S. W. 1076; Wells v. Minneapolis Baseball & Athletic Ass’n, 122 Minn. 327, 142 N. W. 706, Ann. Cas. 1914 D 922, 46 L. R. A. (N. S.) 606.

The judgment of the lower court is reversed and the cause dismissed.