Ingerson v. Shattuck School , 185 Minn. 16 ( 1931 )

I dissent.

The defendant conducts a private school, and if as such it chooses to conduct competitive games and for an admission fee invite the public to attend, it should be bound to exercise towards its paid guests a degree of care commensurate with the hazards to which they are exposed. The majority opinion concedes this, but holds as a matter of law that defendant exercised due diligence. With that conclusion I cannot agree. It is true that a football in itself is not a particularly dangerous instrumentality, but a football was not what caused or might be anticipated to cause damage here. A football team is however a highly organized machine which functions with great force and violence. When in play the bodies of the players, either singly or in groups, become human projectiles highly dangerous to any ordinary person against whom they happen to be launched. The players are blind to every consideration other than the advancement of the ball and the interests of their team. They have no eyes or ears for anything else. It is shown by this record that the strategy of the game often requires the carrying or forcing of the ball beyond the side lines. Under such circumstances was it a question for the jury whether the defendant exercised care commensurate with the hazards to which spectators, especially women, were exposed by the game? Plaintiffs' evidence tended to show that defendant failed so to police or otherwise regulate spectators as to keep them a reasonable distance from the side lines so that they would not be injured by players running at full speed with the probability of being tackled at or near the side lines. Such plays were likely to result in players' running or rolling violently outside the bounds of the field proper. If people stood near the side lines they were likely to be hurt when such players collided with them.

The record shows that notwithstanding it charged a substantial admission fee, defendant took no precautions whatever as to the spectators near the side lines. They were cautioned, if at all, to keep outside the side lines, but this warning would by implication be an assurance of safety if they complied. It is true that a rope would not have prevented players from rolling under it, but a rope suitably placed and policed would have kept the spectators out of range of the violently running or rolling players. A fence may have been too much to ask of defendant, but a properly built one would have been absolute insurance against broken limbs or other injuries to spectators. Proper policing or warning of danger would probably have been sufficient protection. It is true that defendant showed that it was customary not to rope the grounds at the less important games in the smaller schools, but this is merely evidence of diligence, doubtless given its due weight by the jury. It is not conclusive. 4 Dunnell, Minn. Dig. (2 ed. Supp.) § 7049, note 91. What ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. The usual way may be a negligent way. I think this court goes too far in saying that all reasonable minds would concede that defendant was in the exercise of due care. I think that persons of ordinary prudence familiar with the game would anticipate just such collisions as this.

If the defendant went into the business of charging admission to its games, it should be held to the ordinary standards of care towards the spectators that apply to others so engaged. If the defendant did not care to police its grounds, it could transfer the activity to an athletic association. I feel that the case was for the jury on whether defendant exercised care commensurate with the hazards, and I agree with the majority that the injured woman was not necessarily guilty of contributory negligence. She might, with her limited experience as an observer of such games, fail to realize the hazard of standing with the crowd too near the side lines.