
    Mary S. Roper, Respondent, v. Ulster County Agricultural Society, Appellant.
    Third Department,
    December 30, 1909.
    Agricultural association—injury to spectator at fair—independent contractor—failure, of association conducting fair to provide safe place.
    An agricultural society holding a fair which sells tickets admitting spectators to all parts of the grounds may .be held liable for injuries caused to a spectator by an independent contractor exhibiting a balloon ascension, if the injury was attributable to its negligence in failing to provide a safe place in which to watch the ascension.
    ^Evidence in an action brought to' recover damages for injuries received by a spectator at a fair who was caught and carried into the air by an ascending balloon operated by an independent contractor, examined, and held, to justify a judgment for the plaintiff based on a finding that the association conducting the fair had failed to provide a safe place from which to see the exhibition.
    Appeal by the defendant, the Ulster County Agricultural Society, ■from a judgment of the Supreme Court in favor of the plaintiff, -entered in the office of the clérk of the county of Ulster on the 8th day of February, 1909, upon the verdict of a jury for $1,000, and also from an order made on the 16th day of December, 1908, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. ,
    The action is for- personal injuries. The plaintiff attended the annual fair held by the defendant on its grounds at Ellénville on August 29, 1906, and - her admission fee thereto was paid; One of the advertised attractions of the fair was a balloon ascension by a woman aeronaut. The balloon was a large, egg-shaped sack over' sixty feet in height, having a diameter of about forty-two feet. It was inflated at the bottom with hot air through a large opening; While being inflated it was held in position by means of a wire strung between, the- tops, of two large poles about forty feet in height, standing vertically and' held in position by guy ropes extended from the tops of the poles to stakes in the ground. After the balloon- was filled with hot air and ready to be released - the poles were dropped to the ground. It was then held down for several minutes by a number of bystanders with ropes attached thereto, who released, their hold upon the orders of one Williams, who had the contract with the defendant for this special attraction. There was attached to the top o.f the balloon a long rope having tied to it a sand bag weighing about fifteen or twenty pounds, which bag, when ,the balloon ascended, hung near the bottom of the balloon. The rope extended, according to the plaintiff’s evidence, some distance below the bag, and before the ascénsion it was concealed in the grass on the grotind, which was about three' inches high. The purpose of the rope and the sand bag was to tilt the balloon after the ascension, to let the hot air out so it Would descend. This was to be operated' at about the time 'when tlie aeronaut cut loose from the balloon to descend in her parachute. The plaintiff was pne of about a thousand in a crowd about the balloon when it was. being inflated.. After the . poles hadAallen the plaintiff and the crowd rushed up still nearer to, the balloon. There was no rope or other barrier making an inclosure about it to keep the crowd back. According to the plaintiff’s evidence the-only warning- given to her or to the crowd at any time was to look out for the poles, as they might drop or break, and no warning was given to look out for any ropes in the grass or on the ground. When the balloon was released the sand bag rope by a half-hitcli or in some manner caught the plaintiff about her left ankle and threw her down and dragged her for a distance. She caught hold of the rope near or at the bag with her left hand in such a manner that the forefinger on that hand: became entangled in it, and being so caught by her left ankle and finger she was carried a distance of several hundred feet in the air. The aeronaut who was in the parachute some distance below her discovered her predicament and was able to make a descent and to jump from the parachute as it reached the ground in time to catch the plaintiff before she struck it. The plaintiff had one bone of her finger broken and received other bruises and injuries, for which sha has received a verdict, and the defendant appeals.
    
      John R. JDe Vany and John J. Linson, for the appellant.
    
      Frederick Mellor, for the respondent.
   Chester, J.:

The appellant contends that the negligence in this case, if any, was that of Williams, an independent contractor, for which-' the defendant" was not liable. The evidence, it is true, shows that Williams contracted with the defendant to give the balloon ascension with parachute attachment upon each day of the fair, and that he was to furnish the balloon, the aeronaut and all the other appliances for making the ascensions, except the brick work used to inflate the balloon and the fuel and labor to dig a trench therefor. It is clear, however, from the evidence that the plaintiff was entitled under her ticket of admission to access-to any part of the'grounds to view the exhibition, and as long as the defendant had not provided barriers or given warnings to prevent her from going close to the balloon, she had a right to go there with the crowd. Under this view of the case a question of fact was presented as to whether or not the defendant had furnished her a safe place from which to view the ascension, and also whether it had exercised reasonable care in that respect. The evidence in relation to the warnings given to the plaintiff and others about the balloon was conflicting, but it was sufficient to justify a finding that no warnings were given of any danger other than from the falling of the poles. The question as to whether or not the defendant had exercised reasonable care in providing the plaintiff with a safe place to see the exhibition was submitted tó the jury, and their finding was adverse to the contention of the defendant. This verdict has sufficient support in the evidence.. The failure in this respect was that of the defendant and not that of Williams, the contractor, and under the authorities created a liability against the defendant for the plaintiff’s' injuries. (Peckett v. Bergen Beach Co., 44 App. Div. 559; Schnizer v. Phillips, 108 id. 17.)

The case of Deyo v. Kingston Consolidated Railroad Co(94 App. Div. 578), cited by the appellant, is not an authority against this doctrine. On the contrary, the rule of liability here invoked by the respondent is there expressly recognized.

The questions of plaintiff’s freedom from contributory negligence and of her assumption of the risk were also properly submitted to the jury and their verdict as to those matters must be controlling based as. they were upon sufficient evidence. ’ '

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  