Thomas Raeburn White, Jr., and White, Williams & Scott, Philadelphia, for appellant.
Harry Goldbacher, Philadelphia, James C. Lanshe, Allentown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 173 Pa. Super. Page 181]
In this action of trespass for personal injuries, damages were sought by the wife plaintiff (hereinafter referred to as plaintiff) for pain and suffering and by the husband plaintiff for expenses incurred by reason of his wife's injuries and for loss of consortium. The jury returned a verdict for the plaintiff and found against her husband. Defendant's motion for judgment n. o. v. was refused, and it has appealed to this Court.
[ 173 Pa. Super. Page 182]
On the afternoon of June 5, 1949, plaintiffs, residents of Allentown, traveled to Philadelphia to see a 'doubleheader' baseball game between the Philadelphia Phillies and the Chicago Cubs. They arrived at Shibe Park, the scene of the games, and found a 'tremendous crowd' at the various ticket windows. Plaintiff husband became part of a long ticket line. He testified that he was assured by the ticket seller that the seats being assigned to him were 'pretty good' and that they were 'back of the screen', as he desired them to be. During this alleged discussion the plaintiff stood nearby but it is not disclosed whether she heard or paid any attention to it. The seats, it developed, were located in the upper stand, on the first base side of the diamond, but not behind the protective screen, being removed therefrom by about 15 or 20 feet. The husband testified that when they reached their seats the first game was in the sixth or seventh inning of play, that on discovering the seats were not in the protected area he got up but saw it was impossible to return to the ticket window to exchange the tickets because of the crowd coming down the aisle, so resumed his seat. A minute or two later, or about ten minutes after he and plaintiff had originally been seated, plaintiff was struck by a foul ball.
Plaintiff testified that she had never seen a baseball game prior to the one at which she was injured, that she knew nothing about it, that she had seen televised games but had seen no balls go into the stands on television.
That the husband was thoroughly familiar with this particular hazard is established by his testimony on cross-examination. He stated, 'There is a million foul balls, maybe three or four or five in an inning, goes into the stand.'
[ 173 Pa. Super. Page 183]
Negligence is the doing of that which a reasonably prudent man would not do under the circumstances, or the failing to do that which a reasonably prudent man would do under the circumstances. Smith v. Harwood Electric Co., 255 Pa. 165, 99 A. 473. It is never presumed, and the burden of proving it is on the plaintiff. To recover in a negligence action, a plaintiff must prove (1) a legal duty owing to him by defendant; (2) an unintentional breach of that duty by careless conduct; (3) a causal connection between defendant's conduct and plaintiff's injury. Furthermore, the plaintiff's case must not disclose that he voluntarily assumed the risk or was guilty of contributory negligence. The mere happening of an accident is no evidence of negligence. Thompson v. Gorman, 366 Pa. 242, 246, 77 A.2d 413. 'One who maintains a 'place of amusement for which admission is charged, is not an insurer, but must use reasonable care in the construction, maintenance, and management of it, having regard to the character of the exhibitions given and the customary conduct of patrons invited:' Haugh v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145.' Kallish v. American Base Ball Club of Philadelphia, 138 Pa. Super. 602, 603, 10 A.2d 831, 832.
Plaintiff contends that the legal duty owing her by defendant (which she claims was breached) consisted of 'exceptional precautions' toward its women patrons, many of whom are ignorant of the hazards involved in the game, and who are induced to attend by special invitation, as on afternoons when they are admitted free; that these exceptional precautions include extension of the screen coverage behind the batter's and catcher's positions to a wider area, still leaving 'a few sections' for patrons who ...