Parker, P. J.:
The negligent act which the complaint charges as having produced the injury complained of is that the defendant’s agents and servants negligently discharged the rocket at and towards the plaintiff, so that the stick hit her in the eye. Also, in its charge to the jury, "the trial court told them that the negligence complained of was “that-in the manipulation of "the rockets in question there was negligence.” Want of due care, therefore, on the defendant’s part in any matter, other than the method by which the rocket was directed and discharged, is not claimed and has never been determined against it in this action.
Concededly the persons who manipulated the rocket that injured the plaintiff — those who discharged and directed it — were men sent by the Pain Manufacturing Company to do all the work necessary to give the exhibition of fireworks, which that company had contracted with the defendant to give on the evening, in question. There is no claim that the defendant, in any manner, interfered with or directed those men in the performance of that work,, and the firing of the rocket in question was a part of, and occurred in such performance. It is clear, therefore, that neither the defendant nor any of its regular and usual employees did the negligent act which caused this injury'. It was done by the Pain Manufacturing Company, and naturally that company and its servants would be deemed the parties to whom the plaintiff must look for redress. (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181.)
If, however, for any reason, the persons who manipulated the rockets can be deemed the servants of the defendant; if such a relation can be considered to then exist between them and the defendant, the plaintiff’s claim for injuries can be sustained against the defendant. A person is liable for the negligent act of his own servant done in the performance of his, the master’s, business.
The record in this case, however, very clearly shows that neither the Pain Company nor the persons whom it sent to do the work had assumed the relation of servant towards this defendant. That company was one of the best-known and largest exhibitors of fireworks in the country. That was its own individual and independent business. And all that was done in the matter of sending off fireworks that evening upon the defendant’s grounds was done by that com-[581]*581pony as an independent contractor. The defendant had no control whatever over the details of the work, nor over the men who performed it. This is plain from the contract made with that company and from the evidence in the case, and the following cases clearly show that the relation of master and servant did not exist between them: Butler v. Townsend (126 N. Y. 105); Uppington v. City of New York (165 id. 222); Murray v. Dwight (15 App. Div. 241; 161 N. Y. 301); Lewis v. Long Island R. R. Co. (162 id. 52, 66). And the defendant cannot be held liable upon the doctrine of respondeat superior. (Wyllie v. Palmer, 137 N. Y. 248, 257; Berg v. Parsons, 156 id. 109.)
But even when a person has been doing work as an independent contractor for another, and the relation of master and servant clearly does not exist between them, yet the employer has in some instances been held liable for injury resulting from the contractor’s work. The instances and the principles which control those cases are found in Engel v. Eureka Club (137 N. Y. 100, 104); Berg v. Parsons (supra, 109, 115), and furnish additional exceptions to the rule that he who does the negligent act is alone liable for the injury caused thereby. But it is evident that neither of the principles therein stated are applicable to this case.
It is urged, however, that there are features in this case which should create a further exception to the general rule.
The place where this injury occurred was one to which the public were constantly invited by the defendant, for the purpose of witnessing entertainments given by the defendant, and for which it charged an entrance fee. Upon the evening in question this plaintiff, with some 2,000 others, were invited by the defendant to attend and witness an exhibition of fireworks, and each paid the defendant the sum of twenty-five cents for so doing. As between the defendant and the public so invited, therefore, the defendant gave the exhibition, and the parties who manipulated the rockets were its assistants in giving that exhibition ; and the claim is made that, as between the defendant and those so attending, the defendant should be held liable for the negligent act of those so assisting.
No principle announced in any of the exceptions above cited sustains this claim, but it is vigorously urged that one exists and should be recognized in the relation that is created between those so invited [582]*582and attending, and the trust that is necessarily placed by them, with such owner, that the whole exhibition, to be so witnessed, is in his care and that he is responsible for the negligent act of whoever assists him therein.
They urge that such a principle is substantially recognized in cases where the owner of such grounds has been held liable for an injury resulting from the improper and unsafe construction of a building or a grand stand, into which the public have been invited, even though their defective condition resulted from the carelessness of a contractor, and from no negligent act or fault whatever of the owner. The case of Francis v. Cockrell (L. R. 5 Q. B. 501) and the case of Barrett v. Lake Ontario Beach Imp. Co. (174 N. Y. 311, 314) are cited as sustaining this rule, and the argument is, that the same duty that requires an owner to be responsible for the safe condition of the place where the exhibition is held requires the owner to be equally responsible for the careful and prudent manner in which the exhibition is conducted.
But, in my judgment, the cases do not sustain the proposition that the owner of such premises warrants that they are safe for the public use. The rule is, that if the owner knows, or ought to have known, that they are in any respect unsafe for such use, and himself invites, or permits another to invite, the public- upon them, he will be liable to any one of the public who is injured because of their unsafe condition. The ground of his liability is his own negligence in permitting the public to use the premises in the unsafe condition, and he is held in this respect to a very strict degree of care concerning their safe condition. The case of Edwards v. New York & Harlem R. R. Co. (98 N. Y. 245) so holds; and the discussion in the prevailing and dissenting opinions in that case well illustrates the distinction; and I do not find in any of the more recent cases that this principle has been at all modified.
None of the cases cited by the respondent are, therefore, authority to sustain the claim which she makes. Even as between himself and the public the owner- who invites them, upon his premises is held liable for his own negligence only, and the negligent act of another, unless within the exceptions above stated, are not a cause of action against him.
Thus, in the case at bar, the only negligence, complained of is [583]*583that a rocket was negligently directed and discharged by a servant of the Pain Manufacturing Company.
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Parker, P. J.:
The negligent act which the complaint charges as having produced the injury complained of is that the defendant’s agents and servants negligently discharged the rocket at and towards the plaintiff, so that the stick hit her in the eye. Also, in its charge to the jury, "the trial court told them that the negligence complained of was “that-in the manipulation of "the rockets in question there was negligence.” Want of due care, therefore, on the defendant’s part in any matter, other than the method by which the rocket was directed and discharged, is not claimed and has never been determined against it in this action.
Concededly the persons who manipulated the rocket that injured the plaintiff — those who discharged and directed it — were men sent by the Pain Manufacturing Company to do all the work necessary to give the exhibition of fireworks, which that company had contracted with the defendant to give on the evening, in question. There is no claim that the defendant, in any manner, interfered with or directed those men in the performance of that work,, and the firing of the rocket in question was a part of, and occurred in such performance. It is clear, therefore, that neither the defendant nor any of its regular and usual employees did the negligent act which caused this injury'. It was done by the Pain Manufacturing Company, and naturally that company and its servants would be deemed the parties to whom the plaintiff must look for redress. (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181.)
If, however, for any reason, the persons who manipulated the rockets can be deemed the servants of the defendant; if such a relation can be considered to then exist between them and the defendant, the plaintiff’s claim for injuries can be sustained against the defendant. A person is liable for the negligent act of his own servant done in the performance of his, the master’s, business.
The record in this case, however, very clearly shows that neither the Pain Company nor the persons whom it sent to do the work had assumed the relation of servant towards this defendant. That company was one of the best-known and largest exhibitors of fireworks in the country. That was its own individual and independent business. And all that was done in the matter of sending off fireworks that evening upon the defendant’s grounds was done by that com-[581]*581pony as an independent contractor. The defendant had no control whatever over the details of the work, nor over the men who performed it. This is plain from the contract made with that company and from the evidence in the case, and the following cases clearly show that the relation of master and servant did not exist between them: Butler v. Townsend (126 N. Y. 105); Uppington v. City of New York (165 id. 222); Murray v. Dwight (15 App. Div. 241; 161 N. Y. 301); Lewis v. Long Island R. R. Co. (162 id. 52, 66). And the defendant cannot be held liable upon the doctrine of respondeat superior. (Wyllie v. Palmer, 137 N. Y. 248, 257; Berg v. Parsons, 156 id. 109.)
But even when a person has been doing work as an independent contractor for another, and the relation of master and servant clearly does not exist between them, yet the employer has in some instances been held liable for injury resulting from the contractor’s work. The instances and the principles which control those cases are found in Engel v. Eureka Club (137 N. Y. 100, 104); Berg v. Parsons (supra, 109, 115), and furnish additional exceptions to the rule that he who does the negligent act is alone liable for the injury caused thereby. But it is evident that neither of the principles therein stated are applicable to this case.
It is urged, however, that there are features in this case which should create a further exception to the general rule.
The place where this injury occurred was one to which the public were constantly invited by the defendant, for the purpose of witnessing entertainments given by the defendant, and for which it charged an entrance fee. Upon the evening in question this plaintiff, with some 2,000 others, were invited by the defendant to attend and witness an exhibition of fireworks, and each paid the defendant the sum of twenty-five cents for so doing. As between the defendant and the public so invited, therefore, the defendant gave the exhibition, and the parties who manipulated the rockets were its assistants in giving that exhibition ; and the claim is made that, as between the defendant and those so attending, the defendant should be held liable for the negligent act of those so assisting.
No principle announced in any of the exceptions above cited sustains this claim, but it is vigorously urged that one exists and should be recognized in the relation that is created between those so invited [582]*582and attending, and the trust that is necessarily placed by them, with such owner, that the whole exhibition, to be so witnessed, is in his care and that he is responsible for the negligent act of whoever assists him therein.
They urge that such a principle is substantially recognized in cases where the owner of such grounds has been held liable for an injury resulting from the improper and unsafe construction of a building or a grand stand, into which the public have been invited, even though their defective condition resulted from the carelessness of a contractor, and from no negligent act or fault whatever of the owner. The case of Francis v. Cockrell (L. R. 5 Q. B. 501) and the case of Barrett v. Lake Ontario Beach Imp. Co. (174 N. Y. 311, 314) are cited as sustaining this rule, and the argument is, that the same duty that requires an owner to be responsible for the safe condition of the place where the exhibition is held requires the owner to be equally responsible for the careful and prudent manner in which the exhibition is conducted.
But, in my judgment, the cases do not sustain the proposition that the owner of such premises warrants that they are safe for the public use. The rule is, that if the owner knows, or ought to have known, that they are in any respect unsafe for such use, and himself invites, or permits another to invite, the public- upon them, he will be liable to any one of the public who is injured because of their unsafe condition. The ground of his liability is his own negligence in permitting the public to use the premises in the unsafe condition, and he is held in this respect to a very strict degree of care concerning their safe condition. The case of Edwards v. New York & Harlem R. R. Co. (98 N. Y. 245) so holds; and the discussion in the prevailing and dissenting opinions in that case well illustrates the distinction; and I do not find in any of the more recent cases that this principle has been at all modified.
None of the cases cited by the respondent are, therefore, authority to sustain the claim which she makes. Even as between himself and the public the owner- who invites them, upon his premises is held liable for his own negligence only, and the negligent act of another, unless within the exceptions above stated, are not a cause of action against him.
Thus, in the case at bar, the only negligence, complained of is [583]*583that a rocket was negligently directed and discharged by a servant of the Pain Manufacturing Company. The defendant, when it invited the public upon its grounds, had no reason to apprehend such negligent act would occur. It was not a condition which it knew, or ought to have known, threatened injury to those attending, and hence it did not come within the rule settled by the Edwards Case (supra). And so long as it must be conceded that the defendant was not the master of the one who fired the rocket, and cannot be held under the rule of respondeat superior, there is no rule of law to which my attention has been called that does hold it liable.
There are instances, 'and this may be one of them, which would seem to indicate that sound public policy should require that whoever invites the public to witness an entertainment on his premises, for a compensation, should be held liable for the negligent act of amp one who takes part in exhibiting it; but,.on the other hand, I can conceive of instances where such a rule would be a harsh and unjust one. I do not find that the courts have, as yet, settled upon such a rule as the law of the land, and. I am not disposed to declare it to be the law in this case. The negligent party, if any, in this case, was the Pain Manufacturing Company, and against it should the plaintiff have looked for redress.
The judgment should be reversed and a new trial granted, costs to the appellant to abide the event.
All concurred, Chase, J., in memorandum, in which Chesteb, J., concurred, except Houghton, J., dissenting in opinion.