Some passages in the opinion in Eames v. Salem & Lowell Railroad, 98 Mass. 560, 563, were relied on by the plaintiff’s counsel at the argument, and apparently formed the basis of the rulings of the learned judge in the Court below. But in that case there was no evidence of any negligence or misconduct in the management of the train, and an exact definition of the defendants’ liability, by reason of such negligence or misconduct, was not required. In the present case such a definition was requested by the defendants in appropriate terms, and was refused, and for that refusal their
Exceptions must be sustained.[[124]]
HERRICK v. WIXOM
Supreme Court, Michigan, September 27, 1899.
Reported in 121 Michigan Reports, 384.
Trespass on the Case for personal injuries.
Defendant was the possessor and manager of a tent show or circus. On the afternoon of an exhibition plaintiff went inside the tent and took a seat. There was a conflict of testimony as to whether plaintiff was invited into the tent by an authorized agent of defendant, or whether he entered without any invitation or other justification. A feature of the entertainment consisted in the ignition and explosion of a giant firecracker, attached to a pipe set in an upright position in one of the show rings. Plaintiff sat thirty or forty feet from the place where the cracker was exploded. At the explosion, part of the firecracker flew and struck plaintiff in the eye, whereby he lost the sight of his eye.
The judge left to the jury the question whether it was negligent in defendant to explode this firecracker in the inside of the tent and in the presence of the audience.
Then he gave, among others, the following instruction:—
“Now you must further find, in order that the plaintiff recover, that the plaintiff was in the tent, where he was injured, by the invitation of some person having authority to allow him to go in there. If he was a mere trespasser, who forced his way in, then the defendant owed him no duty that would enable him to recover under the declaration and proofs in this case.”...
Verdict of no cause of action. Judgment for defendant. Plaintiff brought error.[[125]]
Montgomery, J. [After stating the case.] We think this instruction faulty, in so far as it was intended to preclude recovery in any event if the plaintiff was found to be a trespasser. It is true that a trespasser who suffers an injury because of a dangerous condition of premises is without remedy. But, where a trespasser is discovered upon the premises by the owner or occupant, he is not beyond the pale of the law, and any negligence resulting in injury will render the person guilty of negligence liable to respond in damages. Beach, Contrib. Neg. § 50; Whart. Neg. § 346; Marble v. Ross, 124 Mass. 44; Houston, etc., R. Co. v. Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Brown v. Lynn, 31 Pa. St. 510 (72 Am. Dec. 768); Needham v. Railroad Co., 37 Cal. 409; Davies v. Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. In this case the negligent act of the defendant’s servant was committed after the audience was made up. The presence of plaintiff was known, and the danger to him from a negligent act was also known. The question of whether a dangerous experiment should be attempted in his presence, or whether an experiment should be conducted with due care and regard to his safety, cannot be made to depend upon whether he had forced himself into the tent. Every instinct of humanity revolts at such a suggestion.