Boeckling Co. v. Slattery , 26 Ohio App. 261 ( 1927 )

The defendant in error, Mae Slattery, brought an action in the court of common pleas of this county against the plaintiff in error, the G.A. Boeckling Company, to recover damages for personal injuries sustained while she was a visitor upon the pleasure resort grounds of plaintiff in error by reason of being hit by a baseball which was thrown by some unknown person, in the course of the operation of a concession by one E.D. Forbes. The plaintiff in error had leased to Forbes for the concession a space practically twelve feet in width, extending back twenty feet from the sidewalk; the space outside the portion leased remaining in the main under the direction and control of plaintiff in error as a part of its pleasure resort grounds, to which the public were invited. The concession offered an amusing diversion to bystanders. It consisted of a device whereby a person might pay a price and obtain two or three balls, and then, standing in front of the counter, exercise the privilege of throwing them at a target, which, when struck, released an "educated pig," causing it to slide down a chute into a tub of water. The pig would then return to its former position of its own accord. Except for a low fence, there were no screens, nets, or protection of any kind, along the sides to keep balls from striking onlookers.

On July 22, 1923, the defendant in error, with her husband and some other companions, came by automobile to the pleasure resort, which was open to all of the public who paid the fee at the entrance gate, and, while lawfully upon the grounds in response to some "ballyhooing" at the concession in question, approached with her company to within about three feet of the low fence on the side of the concession, and while standing there was struck by one of the balls thrown by an unknown person, and was injured.

Upon trial of the case in the court below, the jury returned a verdict in favor of defendant in error for $5,000, upon which judgment was entered. This proceeding in error is brought to reverse that judgment.

The defendant in error came upon the grounds of the plaintiff in error by invitation, and was, at the time of her injury, upon ground which was under the direction and control of the plaintiff in error, and the plaintiff in error owed to her the duty to exercise ordinary care to render the premises reasonably safe for her as an invitee. Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86; Thornton, Adm'x., v. Maine StateAgricultural Society, 97 Me. 108, 53 A. 979, 94 Am. St. Rep., 488; Lucas County Agricultural Society v. Keller, 90 Ohio St. 431, 108 N.E. 1125; Thompson v. Lowell, L. H. St. Ry. Co.,170 Mass. 577, 49 N.E. 913, 40 L.R.A., 345, 64 Am. St. Rep., 323.

The claim made in the petition was that the company was guilty of negligence in failing to protect invitees on its grounds by screens or other proper device, in failing to afford any warning or notice to them, and in failing to take any precautions whatever so that they would not be struck by thrown balls.

The case was properly one in which the questions of the negligence of the company, proximate cause, and contributory negligence were for the jury; the verdict is not manifestly against the weight of the evidence; and the court below submitted the issues to the jury in a charge which was free from prejudicial error.

The claim is made that the verdict is excessive. The testimony of two attending physicians tends to show that the blow caused a bruising of the tissues and a hemorrhage, resulting in what is called a haematoma or blood tumor in the rhomboidal muscles; that there resulted therefrom a thickening or greater prominence of the tissues in those parts; that these muscles have to do with the tension upon and placing of the shoulder blade or scapula, and are attached thereto; that when there is a lifting of the arm, or a reaching motion, or a downward, backward movement of the arm, like a sweeping or saber motion, the patient suffers pain, and the pain excites paroxysms of coughing; that the injury will result in a chronic condition, attended by pain and soreness, will be naturally aggravated by colds and coughs; and that the injury is of a permanent nature.

From her testimony, it appears that she was at the time of her injury earning approximately $145 per month. After her injury she lost considerable time, due to her indisposition arising therefrom, and, finally, about a year thereafter, quit her employment, and has since been keeping house.

We are unable to say that the damages are so excessive as to warrant the conclusion that the amount awarded by the jury is clearly and manifestly against the weight of the evidence in this respect.

The record discloses no error to the prejudice of the plaintiff in error, and the judgment will therefore be affirmed.

Judgment affirmed.

RICHARDS and LLOYD, JJ., concur.