Opinion
December 30, 1909.
John R. De Vany and John J. Linson, for the appellant.
Frederick Mellor, for the respondent.
The appellant contends that the negligence in this case, if any, was that of Williams, an independent contractor, for which the defendant was not liable. The evidence, it is true, shows that Williams contracted with the defendant to give the balloon ascension with parachute attachment upon each day of the fair, and that he was to furnish the balloon, the aeronaut and all the other appliances for making the ascensions, except the brick work used to inflate the balloon and the fuel and labor to dig a trench therefor. It is clear, however, from the evidence that the plaintiff was entitled under her ticket of admission to access to any part of the grounds to view the exhibition, and as long as the defendant had not provided barriers or given warnings to prevent her from going close to the balloon, she had a right to go there with the crowd. Under this view of the case a question of fact was presented as to whether or not the defendant had furnished her a safe place from which to view the ascension, and also whether it had exercised reasonable care in that respect. The evidence in relation to the warnings given to the plaintiff and others about the balloon was conflicting, but it was sufficient to justify a finding that no warnings were given of any danger other than from the falling of the poles. The question as to whether or not the defendant had exercised reasonable care in providing the plaintiff with a safe place to see the exhibition was submitted to the jury, and their finding was adverse to the contention of the defendant. This verdict has sufficient support in the evidence. The failure in this respect was that of the defendant and not that of Williams, the contractor, and under the authorities created a liability against the defendant for the plaintiff's injuries. ( Peckett v. Bergen Beach Co., 44 App. Div. 559; Schnizer v. Phillips, 108 id. 17.)
The case of Deyo v. Kingston Consolidated Railroad Co. ( 94 App. Div. 578), cited by the appellant, is not an authority against this doctrine. On the contrary, the rule of liability here invoked by the respondent is there expressly recognized.
The questions of plaintiff's freedom from contributory negligence and of her assumption of the risk were also properly submitted to the jury and their verdict as to those matters must be controlling based as they were upon sufficient evidence.
The judgment and order should be affirmed, with costs.
All concurred.
Judgment and order unanimously affirmed, with costs.