Opinion
January 6, 1915.
Fryer Lewis [ Edgar T. Brackett and Charles G. Fryer of counsel], for the appellant.
Loucks Alexander [ William Dewey Loucks of counsel], for the respondent.
The defendants herein were the owners and operators of a circus. They were giving a show at Schenectady. Just before the performance started a fire broke out in the roof or canvass top of the main tent. The plaintiff was one of the spectators. She was admitted on a ticket purchased by her sister. She occupied a reserved seat. When she first discovered the fire she rose up intending to leave the tent, but ushers went along telling the people to keep their seats, that they were putting out the fire. Obeying this admonition the plaintiff sat down and waited a little while, but seeing the fire blazing up instead of going out, she got up again to go, whereupon the crowd behind her rushed down upon her, pushed her over and she was injured. The circus of the defendants was not equipped with any chemical apparatus or other apparatus or contrivance for extinguishing fire. Contrary to their statements to the audience, neither the ushers nor any other persons in the employ of the defendants made any effort to put out the fire. Indeed there was nothing that they could do to put it out for the fire was in the top of the tent beyond their reach, and having no apparatus for the purpose they were helpless.
Where a nonsuit has been granted, the plaintiff, on appeal, is entitled to the most favorable inferences which can be drawn from the evidence. Therefore, the above facts may be said to have been fairly established.
Under these circumstances and in view of this evidence, should a nonsuit have been granted? The question of negligence is always one of fact for the jury. The plaintiff alleged and proved that the defendants had no fire apparatus. Ought they not to have had chemical extinguishers to be operated by hand? Devices of this kind are very common in these days. They hang upon the walls of most all public buildings and are kept in many factories and other places where there is a possibility of fire. Was it negligence on the part of this circus management not to have them? That was a question for the jury. Had the defendants been put to their defense perhaps they could easily have proved that it was not negligence, that it would have been impracticable to have carried or operated such apparatus. The defendants might, in this way and in other ways, have shown their entire freedom from negligence; but it cannot, we think, be said as a matter of law that they were not negligent in this respect.
The proof that no effort to extinguish the fire was made by defendants, and that they allowed the fire to continue to burn, is only an amplification of the proposition concerning the lack of fire apparatus.
We think the question as to whether the defendants were negligent in the particular pointed out above should have been submitted to the jury.
The judgment of nonsuit should be reversed and a new trial granted.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.