
    The Cincinnati Base Ball Club Co. v. Eno.
    
      Negligence — Exercise of care by owner of premises toward invitees — Question for jury — Negligence of baseball club practicing before unscreened grand stand — Contributory negligence by spectator sitting in unscreened section.
    
    1. One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitees.
    2. Whether the management of a baseball club company, in permitting practicing by its baseball team in close proximity to the unscreened section o£ the grand stand between the two games of a “double header,” is guilty of negligence, or whether a spectator sitting in the unscreened portion of the grand stand at the time of the practicing is guilty of contributory negligence, is a question of fact for the jury.
    (No. 18528
    Decided March 10, 1925.)
    Error to the Court of Appeals of Hamilton county.
    The defendant in error, ‘Victoria Eno, who was plaintiff below, filed her petition in the court of common pleas of Hamilton county, Ohio, alleging in substance that the defendant company was on or about the 30th day of July, 1921, the lessee of a baseball park in the city of Cincinnati, Hamilton county, Ohio, and was on that day engaged in the business of presenting public exhibitions of professional baseball, as a member of a league of baseball clubs known as “The National League,” composed of professional clubs playing games of baseball according to schedule in various cities j that the games assigned to Cincinnati were and are played in the defendant’s park, under its management and control, for which exhibitions spectators are required to pay admission fees; that on or about the 30th day of July, 1921, plaintiff, in company with a friend, attended a “double header” exhibition between the New York club and the defendant club; that the seats occupied by plaintiff and her friend were reserved seats in box No. 151, on the south side of the grand stand, in such park; that during the intermission between games one of the defendant’s players. in batting practice batted a thrown baseball, which struck plaintiff in the face on the left side of her jaw; that the player was batting from a point near the grand stand where plaintiff was seated, and not from the diamond; that defendant was negligent in not protecting spectators by screening or otherwise against injuries from batted balls and in that it permitted its players to bat balls from such point; and that the negligence of defendant was the proximate cause of plaintiff’s injuries.
    The defendant below in its answer admitted that it was a corporation organized for the purpose of conducting baseball games for profit, and that upon the day set forth in the petition a “double header” baseball game was played in defendant’s park, but denied the injuries of the plaintiff and every allegation in the petition not expressly admitted.
    As a second.defense, defendant set up that batting practice was an established part of the professional baseball exhibition given at its park; that batting practice was part of the exhibition given at the park on said 30th day of July, 1921; that there are certain natural perils and dangers incident to an exhibition of professional baseball which are not within the power of the players to control; that spectators at professional baseball exhibitions, unless they take seats in a protected area of the grand stand, subject themselves to and assume the perils of the plays and actions on the playing field; that for the accommodation and protection of those of its patrons who desired to be protected from such perils, defendant had, prior' to the 30th day of July, 1921, erected a screen of woven wire netting in front of certain sections of seats of the grand stand in defendant’s park, which screen was in place on the said 30th day of July, 1921, and available to plaintiff. As its second defense the defendant further alleged that if the plaintiff was injured at the time and place alleged in her petition, it was because plaintiff elected to take a seat in an unscreened section of the grand stand, where she knew, or in the exercise of ordinary care should have known', that she would be exposed to the perils naturally arising from the exhibition, and that therefore she assumed the risk resulting therefrom.
    As á third defense, the defendant alleged that the plaintiff was guilty of contributory negligence, which was the proximate cause of her alleged injuries.
    At the end of the testimony the court sustained a motion made by defendant for an instructed verdict and instructed the jury to return a verdict for the defendant. Upon the verdict so rendered, judgment was entered. The judgment of the trial court was reversed in the Court of Appeals for Hamilton county, to which reversal of judgment error is here prosecuted; the case coming into this court upon allowance of motion to certify the record.
    
      Messrs. Pogue, Hoffheimer & Pogue, and Mr. J. A. Culbertson, for plaintiff in error.
    
      Mr. Louis B. Sawyer, and Mr. Jas. P. Goodenough, for defendant in error.
   Allen, J.

The plaintiff in error claims that the Court of Appeals erred when it reversed the judgment entered in the trial court for the defendant; that is, it claims that the management of a baseball game is not liable to a spectator at a ball game for injuries from batted balls inflicted in the intermission between two set games, commonly called a “double header”; and that such a spectator who chooses a seat in the unscreened portion of the grand stand is guilty of contributory negligence as matter of law in case any injury is incurred from balls so batted.

Its claim is that the facts as given establish no breach of duty upon the part of the defendant and do establish contributory negligence upon the part of plaintiff below, as a matter of law, in the fact that she sat in an unprotected part of the grand stand at the time when the injury was sustained.

The plaintiff in error cites certain cases in support of its contention, which embody all of the authority in this country upon the precise question. They are as follows:

Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. App., 301, 153 S. W., 1076. In this case the plaintiff had purchased a ticket which entitled him to a seat in the grand stand, protected from foul balls and wild throws by a wire netting; but, instead of going there, he voluntarily chose to take a seat which was unprotected. During the progress of the game he was struck by a foul ball and injured. The plaintiff sued for damages, alleging that the management was negligent in not screening in the whole of the grand stand, and that such negligence was the proximate cause of his injury. The trial court declared that as a matter of law plaintiff was- not entitled to recover. The court of last resort held that the plaintiff’s contributory negligence was -apparent and indisputable, and also held that where one attending a baseball game is offered a -choice of two positions, one of which is less safe than the other, he cannot be said to be in the exercise of reasonable care, if, with full knowledge of the risks and dangers, he chooses the more dangerous place.

In Wells v. Minneapolis Baseball & Athletic Ass’n., 122 Minn., 327, 142 N. W., 706, 46 L. R. A., (N. S.), 606, Ann. Cas., 1914D, 922, the plaintiff was struck by a fly ball hit by one of the players. She alleged that the defendant had negligently constructed a screen between the players and spectators of insufficient size to furnish protection. The evidence tended to show that the plaintiff at the time was sitting in an exposed position, outside of the screen. The court held in the syllabus:

“One who maintains grounds to which the public is invited to witness games of baseball is not an insurer against the dangers incident to witnessing the game, but is required to use- the care and precaution of the ordinary prudent person to protect the spectators against such dangers. He is not required to anticipate the improbable,
“Persons who know and appreciate the danger from thrown or batted balls assume the risk, and they cannot claim the management guilty of negligence when a choice is given between a seat in the open and one behind a screen of reasonable extent.”

In Kavafian v. Seattle Baseball Club Ass’n, 105 Wash., 215, 177 P., 776, 181 P., 679, the plaintiff brought an action for an injury sustained from a foul ball struck during the game. The plaintiff' charged defendant with negligence in failing to maintain a screen in front of the seat which he occupied. The court in departmental hearing held that it was a question for the jury whether a spectator at a ball game struck by a foul ball was guilty of contributory negligence, or assumed the risk in taking a seat in the grand stand unprotected by screens when there were vacant seats so protected. On rehearing in banc, however, the court held that—

“A spectator at a ball game, struck by a foul ball, who voluntarily took and retained a seat in the unscreened section of the grand stand when there were a great number of vacant seats protected by screens that he might have chosen, assumes the risks or is guilty of contributory negligence precluding any recovery.”

The consensus of the above opinions is to the effect that it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be .thrown or batted outside tbe lines of tbe diamond, and that spectators in positions which may be reached by such balls assume the risk thereof. This theory is fortified by the fact that such spectators can watch the ball and can thus usually avoid being struck when a ball is directed toward them.

It is the general rule, also,' so far as screening the grand stand is concerned, that due care on the part of the management does not require all of the spectators to be screened in; that the management performs its duty toward the spectators when it provides screened seats in the grand stand and gives spectators the opportunity of occupying them. The record shows that in the instant ease the management had performed this duty.

We concur in the soundness of the views expressed in the above cases with regard to injuries incurred by balls thrown or batted during the course of a baseball game. The plaintiff below urged that the defendant was negligent in not protecting her by screening that part of the grand stand in which she sat, and if this were the only allegation of negligence, or if it were the only allegation of negligence upon which evidence was given, we should be compelled to reverse the judgment of the Court of Appeals. This case, however, presents a situation materially different from those above cited both as to the liability of the defendants and as to the contributory negligence of the plaintiff. The petition herein, in addition to the allegation as to the defendant’s negligent failure to screen the grand stand, alleges that the injury occurred during the intermission and that the defendant was negligent in permitting its players to bat balls from the point from which the ball which caused the injury was batted. No such allegation appears to have been made by the plaintiff in any of the above-cited cases; the claim in each of them being only, so far as revealed in the opinions, that the management was negligent in not screening the entire grand stand, or at least that part of the stand which the plaintiff occupied.

Upon the admitted facts in this case the plaintiff was an invitee expressly solicited to come upon the premises of the management for the purpose of attending the ball game there to be held.

Under such circumstances, since the management had expressly invited the plaintiff to come upon its premises, it was its duty to exercise ordinary care not to invite her into danger, and to that end it was its duty to exercise ordinary care to render the premises reasonably safe during the period of plaintiff’s sojourn there as an invitee to the game. Cooley on Torts, p. 605. It was the duty of the management which had control of the games played in its park to exercise ordinary care, to the end that the acts done upon its premises with its knowledge and under its supervision by the baseball club should not lead its invited guests into unusual dangers. Being in the business of providing public entertainment for profit, it was bound to exercise care commensurate with the circumstances of the situation to protect patrons against injury.

It was a question of fact for the jury whether the owner performed this duty by allowing players to practice so near the grand stand in an intermission when the set games were not being played.

As to the contributory negligence of the plaintiff, in none of the above-cited cases do the facts disclose that the plaintiff was struck by a ball batted or thrown during the intermission. In every one of them the plaintiff had been struck by a ball, foul or otherwise, thrown or batted during the progress of the game.

The record in the instant case, on the contrary, shows that the ball which caused the injury was batted from the side lines, during an intermission, in the course of the practice which intervened between the two games of the “double header.” Evidence was given tending to show that the players while batting the ball were from 15 to 25 feet from the grand stand. The specific question, therefore, is whether the spectator is guilty of contributory negligence, as a matter of law, in sitting in an unscreened grand stand when practice batting is going on in a part of the field near to himself while the game is not in progress.

In such a situation the reason advanced for the principal rule does not obtain. When practicing is engaged in between games it is often done between several groups, as was the fact in the instant case. The pitcher and catcher of the Cincinnati club were practicing, and the members of the New York club were bunting, in addition to the. practicing which was going on between the two players who were using the particular ball which caused the injury.

When several balls are simultaneously in play upon the field, it is impossible for the spectator to protect himself by watching- the ball, for more than one ball is being thrown or batted at once. During the course of the game itself the .spectator can watch the ball. During the course of the practice he cannot follow the maneuvers of all of the possible groups.

Moreover, the rule which relates to contributory negligence upon the part of the plaintiff in sitting-in an unscreened portion of the grand stand under the facts of the Crone, Wells and Kavafian cases, supra, during the progress of the game is justified by still another reason. The playing during the game is confined for the most part to the diamond, and to those portions of the field away from the grand stand. The batter always intends to bat away from the home plate. It is true that foul balls frequently fly in the direction of the spectators, but the playing is directed away from the spectators for the most part rather than toward them. And the throwing which is done toward the spectators from the pitcher’s box, from bases, or from outfield, is from a distance considerably removed from the grand stand, so that the danger of injury from balls thrown and batted during the game is not so great as the danger from balls thrown or batted in a practice going on at all times within the side lines nearest the grand stand.

Under the facts in the Crane, Wells, and Kavafian cases, supra, the respective courts based their decisions broadly upon the proposition that the plaintiff had such knowledge of the dangers incident to the game itself that he “assumed the risk” or was guilty of negligence as a matter of law in sitting in an unscreened seat at the game. We do not think that this rule should be extended to the facts in the instant case. We do not think that a court should say as a matter of law that a spectator assumes the risk of every batting or throwing of the ball permitted upon the field by the management, no matter how near the grand stand, no matter how many groups are engaged in the practice, and no matter whether the batting or throwing is a -part of the game itself. Under the facts set out in this case, which differ so essentially from those in the cases cited, we are of the opinion that the contributory negligence of the plaintiff should have been submitted to the jury. It was a question of fact under all the circumstances whether the plaintiff was aware of this particular danger, and hence was guilty of contributory negligence as a matter of law in sitting where she did.

Under the facts, a duty rested upon the management to make the premises reasonably safe for spectators by having balls thrown and batted under circumstances and at a place where it would be reasonably possible for the spectators to protect themselves from injury. There was at least a scintilla of evidence in the record tending to show that the management had not performed this duty. This being the case, and it being a question of fact whether the plaintiff herself was guilty of contributory negligence, it was error for the court to direct a verdict in favor of the defendant. Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501; McMurtrie v. Wheeling Traction Co., 107 Ohio St., 107, 149 N. E., 636. Hence the Court of Appeals did not err in reversing the judgment of the court of common pleas.

Judgment affirmed.

Marshall, C. J., Matthias, Kinkade and Robinson, JJ., concur.  