Opinion
December, 1912.
Collin A. McLeod (William King Hall, of counsel), for appellant.
James B. Henney, for respondent.
The plaintiff purchased a ticket of admission to an exhibition conducted by the defendant. While watching the horses jump, the plaintiff was struck by a heavy iron gate, which fell from the impact of a horse which had become unmanageable. These gates were used to admit horses to the arena, and were closed at the time of the accident. No specific defect was shown in their construction, and no negligence on the part of the defendant, unless this negligence may be inferred from the foregoing facts.
Persons invited upon payment of an entrance fee to a place of public amusement have the right to assume that they can go there without incurring any risk, which might have been reasonably anticipated by the proprietor. "It was required that the risks should be minimized to the extent that reasonably prudent men might foresee the necessity of doing so." Barrett v. Lake Ontario Beach Improvement Co., 174 N.Y. 310. The proprietor or lessee of a place of amusement warrants the premises to be reasonably safe for the purposes for which they were designed. If, therefore, an accident occurs from causes which might reasonably have been anticipated, the proprietor or lessee must show that he has not been guilty of negligence in failing to guard against such an accident. In this case the fall of the gate was caused by a horse becoming unmanageable and striking the gate. The defendant argues that, inasmuch as no claim of negligence on the part of the owner or driver of a horse can be predicated upon the fact that a horse has become unmanageable, without proof that the owner or driver knew of the horse's vicious propensities, no cause of action will lie here against the proprietor or lessee of the place of amusement for injuries caused by an unmanageable horse. It seems to me that this argument is fallacious. A horse is not ordinarily a dangerous animal, and the owner of a horse is not negligent merely because he uses an animal, which he has not reason to believe is dangerous; therefore, to predicate negligence upon the fact that a horse became unmanageable requires proof that the owner or driver had reason to believe that the horse might become unmanageable. Where, however, a person invites others to come upon his premises to view an exhibition conducted by him for hire, he warrants the reasonable safety of the place, and by reason of that warranty is not under a passive duty merely, but is under an active duty, to guard against all risks which might reasonably be anticipated. Although he would undoubtedly not be liable for negligence in permitting a horse to be exhibited, which became unmanageable, still the exhibition of horses involves the necessary risk that some horse might become unmanageable, and it is the duty of the proprietor to guard against such risks if they could reasonably be foreseen. From the facts in evidence, a reasonable inference might have been drawn that the defendant could reasonably have foreseen the risk of a horse becoming unmanageable, and could have taken precautions against such risk.
Judgment should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.
PAGE and HOTCHKISS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.