resort in large numbers is manifestly analogous to that which the law imposes upon carriers of passengers. Nevertheless it has been measured by the standard of ordinary care.214 Doubtless the true theory is that such person's assume the obligation of exercising reasonable care, and that what will be reasonable care will be degree of care proportioned to the danger incurred,215 and to the number of persons who will be subjected to that danger.216 A good expression of the rule of liability, applicable in such cases, is found in an English case to the effect that the proprietor of such a structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable,-not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination.217 Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial.218 § 997. Cases Illustrating this Obligation of Care, Presenting Questions for Jury.-Accordingly, the lessees of a structure intended as a place of public exhibition were held not responsible for latent defects in a staircase, whether in its construction or material, at the time they took the building, but were only responsible for a want of due care in failing to keep it in a reasonably safe condition, and were liable for repairing it in an improper manner, which tended to weaken it;219 and it was a proper question for the jury whether the proprietor had employed proper persons to make the alterations, and whether these persons had employed proper care and skill.220 Whether a society conducting an agricultural fair was guilty of actionable negligence in permitting, during an exhibition, the use of a "striking machine," on its grounds with no guards around it, whereby plaintiff was struck by a mallet used in striking the machine by a stranger, was held a ques 214 Brown v. Kennebec Agricultural Soc., 47 Me. 275; ante, § 23. 215 Ante, §§ 25, 26. 218 Currier v. Boston Music Hall Asso., 135 Mass. 414. 219 Pike v. Polytechnic Institution, 216 Currier v. Boston Music Hall 1 Fost. & Fin. 712. Asso., 135 Mass. 414. 217 Francis v. Cockrell, L. R. 5 Q. B. 184; s. c. in Exch. Cham., Id., 501. 220 Brazier v. Polytechnic Institution, 1 Fost. & Fin. 507. tion for the jury. 221 It was also for the jury to decide whether the machine had been on the grounds of the defendant so long that they ought to have known of its presence and of its dangerous character.222 The proprietor of an inn kept a public hall therein, which he was accustomed to let for hire. On a particular evening he let it for the purpose of a public dance. The plaintiff, who paid an entrance fee, on leaving the place, stepped out upon a level awning which he took to be the means of exit, and, in consequence of its being unguarded and unlighted, fell from it and was injured. It was held that the question whether the defendant was guilty of a breach of duty towards the plaintiff and whether the fact of the intoxication of the plaintiff materially contributed to the injury, were properly submitted to the jury.223 If a religious society gives notice of a meeting to be held at its house of worship, and invites the members of other societies to attend, a member of a church so invited, while on the land of the society, is not a mere licensee, and may maintain an action against the society for a personal injury sustained, while in the exercise of due care, from the dangerous condition of the defendant's premises. Accordingly, where a member of another religious society so invited, in making her exit from the meeting-house after dark, by a path which the defendant's society had left in a dangerous condition and unlighted, fell and was injured without her own fault,-it was held that there was a question for the jury whether the defendant had not been guilty of a breach of duty toward her, and whether she was in the exercise of due care.2 224 § 998. Further Illustrations-Proprietors Liable.-A city maintained a roof service to which the public were invited. It left a manhole covered by an unguarded revolving lid which turned when stepped upon. 225 A street railway company advertised a balloon ascension at a park owned and controlled by it. During one of the performances a pole which, through its negligence had become unsafe, fell.226 The owner of a building, used for giving exhibitions, negligently constructed and maintained an insufficient guard rail along the front of 221 Selinas v. Vermont St. Agri. Soc., 60 Vt. 249; s. c. 15 Atl. Rep. 117; 6 N. Eng. Rep. 770; 6 Am. St. Rep. 114. 222 Selinas v. Vermont St. Agri. Soc., 60 Vt. 249; s. c. 15 Atl. Rep. 117; 6 N. Eng. Rep. 770. 223 Camp v. Wood, 76 N. Y. 92. 224 Davis v. Central Congregational Soc., 129 Mass. 367; s. c. 37 Am. Rep. 368. The liability of the owners of a college building for an injury to a student through a dangerous pitfall, on entering the premises at night to attend a meeting of a literary society: Howe v. Ohmart, 7 Ind. App. 32; s. c. 33 N. E. Rep. 466. 226 Glase v. Philadelphia, 169 Pa. St. 488; s. c. 36 W. N. C. 453; 32 Atl. Rep. 600. 226 Richmond &c. R. Co. v. Moore, 94 Va. 493; s. c. 27 S. E. Rep. 70; 37 L. R. A. 258; 3 Va. Law Reg. 572. the gallery, which gave way as the spectators were leaning against it in the usual way, watching the show.227 An agricultural society, conducting a horse race, permitted a horse to run in a race, knowing it to be dangerous by reason of a vicious habit of "track bolting." It bolted, injuring a woman engaged to ride in the same race, who was ignorant of its vicious habit. 228 A keeper of a bathing house failed to provide a watcher to prevent accidents to bathers unable to swim, and, on information of imminent danger to such a bather, failed to render him timely assistance.229 In each of the above cases, injury or death having resulted from the negligence of the keeper of the public resort, it was held that an action for damages lay against him. It has been ruled that this duty of ordinary care requires the keeper of a public bathing resort frequented by great numbers of people, and at which there is deep water, to keep some one constantly on duty to supervise bathers and to rescue any who are apparently in danger;23 and that this measure of duty requires immediate search for a bather who is reported missing, and who was last seen in the water, and the exertion of every effort, without a moment's delay, to rescue him.231 § 999. Further Illustrations-Proprietors Exonerated.-On the other hand, the proprietors of such places will not be liable for an accident which happens in consequence of an event which would not be foreseen by the exercise of reasonable care and foresight,-as where a crowd of people attending a public celebration on certain pleasure grounds on which was a hotel crowded during an afternoon storm in such numbers upon the piazza of the hotel, which was strong enough for ordinary purposes, that it broke down, injuring the plaintiff. 283 So, where the owner of a building lets it to another to be used for a public exhibition and it breaks down in consequence of the fault of the 227 Schofield v. Wood, 170 Mass. 415; s. c. 49 N. E. Rep. 636. 228 Lane v. Minnesota State Agri. Soc., 62 Minn. 175; s. c. 24 L. R. A. 708; 64 N. W. Rep. 382. 229 Brotherton v. Manhattan Beach Improve. Co., 50 Neb. 214; s. c. 69 N. W. Rep. 757; affirming on rehearing 48 Neb. 563; s. c. 67 N. W. Rep. 479; 33 L. R. A. 598. 230 Brotherton v. Manhattan Beach Impr. Co., 50 Neb. 214; s. c. 69 N. W. Rep. 757; aff'g on rehearing 48 Neb. 563; s. c. 67 N. W. Rep. 479; 33 L. R. A. 598. 231 Brotherton v. Manhattan Beach Improve. Co., 48 Neb. 563; s. c. 33 L. R. A. 598; 67 N. W. Rep. 479; aff'd on rehearing in 50 Neb. 214; s. c. 69 N. W. Rep. 757. Upon the question whether the lessor or lessee of a building is liable for the breaking down of a platform, injuring a patron of the show, it has been held that, in a case where a building has been leased for four nights in consideration of the lessor receiving all the gate money when a given amount has been reached, the lessor is liable to the person injured,whether the agreement will be regarded as a lease, or a license, or whether the lessor was negligent or not: Oxford v. Leathe, 165 Mass. 254; s. c. 43 N. E. Rep. 92. 232 Converse v. Walker, 30 Hun (N. Y.) 596. lessee, or in consequence of the manner in which the premises were used by the lessee, the owner will not be liable to one injured thereby.233 It has been held that a fair association discharges its duty with respect to protecting spectators from injury by unruly horses en、 tered in a race, where it provides a "grand stand" from which the race can be viewed, and has enclosed the course on both sides by a good pine railing two by four inches, nailed to posts planted in the ground, and three and a half or four feet high.234 § 1000. Injuries in and about Public-School Buildings.-The liability of municipal corporations or public boards to which is committed the duty of maintaining public schools rests on different principles, which will be discussed in a future volume, when dealing with the subject of the liability of municipal corporations for negligence. In Massachusetts, a town which has assumed the duty of school-districts is not liable for an injury sustained by a scholar attending the public school from a dangerous excavation in the school-house yard, left there by the negligence of the town officers;235 nor is a city which maintains public schools, under a duty imposed by general laws, liable for an injury happening to a child in consequence of the unsafe condition of a staircase in one of its school-houses. 236 These decisions. rest upon the idea that a municipal corporation is not answerable in damages for the torts of its agents while acting in a public or governmental capacity. This doctrine is repudiated by some of the American courts.237 An action has been maintained in the Superior Court of New York City against the Board of Education of that city, in its corporate capacity, for an injury sustained by falling into an unguarded opening in the school-house yard.238 There also a public officer, or the members of a public board, charged by law with the performance of a public duty, and provided with the means of obtaining funds for that purpose, are answerable in damages to any individual 233 Edwards v. New York &c. R. Co., 25 Hun (N. Y.) 634. As to the liability of the landlord in such cases, see post, § 1154, et seq. 234 Hallyburton v. Burke County Fair Asso., 119 N. C. 526; 26 S. E. Rep. 114; 38 L. R. A. 156. That the proprietors of a race course are not liable for injury caused by a runaway horse upon their grounds because they left the horse unguarded, see Hart v. Washington Park Club, 54 Ill. App. 480; s. c. aff'd 157 Ill. 9; 41 N. E. Rep. 620. That a street railway company, owning picnic grounds is not liable for the who has sustained an injury by reason of their failure to perform such duty.239 Upon this principle, where a teacher sustained an injury from stepping through a hole in the floor of the school-room, she recovered damages from the school-trustees individually, which was affirmed by the Supreme Court; but this judgment was reversed by the Court of Appeals, on the ground that the liability was that of the corporation, and not that of the individual directors, who acted, not as officers of the law, but as agents of the corporation.240 In Iowa, a suit against a school-district for an injury to a child, received from the machine of a well-borer while boring a well in the school-house yard, failed because the negligence was that of an independent contractor.241 Outside of the question of the liability of a public board to a private person for an injury sustained through the mere nonfeasance of the board, a Canadian court has held that where the superintendent of a coal company went to a school-house to look at the coal bins for the purpose of deciding how he could best deliver certain coal ordered of his company by the school board, the visit being made before the time arranged for the delivery and without the knowledge of the board, and who was injured by falling into an unguarded hole in the cellar,-could not recover damages from the board. The reason was that the act of the plaintiff in entering the building at a time when neither the defendants, nor any one in their employment had any reason to expect him, was a purely voluntary act on his part, and without any invitation of any kind from the defendants or from any one on their behalf. That being so, there was no breach of duty in failing to have the premises in any particular condition for his safety and protection.242 § 1001. Injuries from Defects in Public Hospital Buildings.—A city hospital was maintained by appropriations from the city, donations, and fees, and governed by a board of trustees. A person visit 239 Adsit v. Brady, 4 Hill (N. Y.) the employment? And was not this 630; Robinson v. Chamberlain, 34 N. Y. 389; Hover v. Barkhoof, 44 N. Y. 113; McCarthy v. Syracuse, 46 N. Y. 194; Clark v. Miller, 54 N. Y. 528. 240 Bassett v. Fish, 12 Hun (N. Y.) 209 (reversed, 19 Alb. L. J. 160). Merwin, J., dissented in the Supreme Court, on the ground that the duty to repair was on the corporation, and not on the trustees personally. The case is not clear, on another ground. Was not the plaintiff the servant of the defendants? Did she not accept the ordinary risks of one of such risks? It was, unless the defect was a latent one, of which she did not know, but of which they knew, or with reasonable diligence might have known: Seymour v. Maddox, 16 Q. B. 326; 20 L. J. (Q. B.) 327; 15 Jur. 723. This question the Court of Appeals appears to have resolved in her favor, but upon doubtful grounds: 19 Alb. L. J. 160. 241 Wood v. Independent School District, 44 Iowa 27. 242 Rogers v. Toronto Public School Board, 23 Ont. App. 597. |