Page, J.,
delivered the opinion of the Court.
The appeals in these cases are taken from judgments in favor of the appellees for injuries to Mary Benick, alleged to have resulted from the negligence of the appellant in conducting a balloon ascension. The appellant was the lessee of a tract of land near Baltimore City. He had fitted it up, as a pleasure resort, with bowling alleys, shooting gallery and restaurant, and besides furnished various other attractions such as fireworks, acrobatic performances, and other things of a like nature. These were extensively advertised,' [613]*613so that many persons were drawn thither; the daily attendance on week days averaging from i,ooo to 1,500 persons, and three times that number on Sunday. The proprietor charged no fee for admission, but relied for his profits from sales, the hiring of boats and the rentals of places for carousel, shooting gallery, &c.
Among other things designed to attract visitors were the balloon ascensions, and it was at one of these that Mrs. Benick was injured. The ascension that day was conducted by a man named Hanna, who was an experienced and competent balloonist. Under his agreement with the appellant, “ Hanna was to furnish and pay for all the material and appliances used in making the ascensions, and m addition thereto was to employ and pay all of the men required to conduct the ascensions,” and the appellant was to have no part to perform except to furnish the field, pay the price and name the hour for the ascension. The method of the ascension was that usually adopted. Two poles of proper height were first erected and maintained in position by guy lines. A rope passed from the top of one pole to that of the other-, and from this by means of a loop, the balloon was kept in position while being inflated. When it was filled, the rope was loosened from one of the poles, and allowed to slip over the top of the balloon, thus releasing it. When the rope over the balloon (called the ridge rope) is loosened, one of the poles falls to the ground. A guard rope intended to keep the people off, is placed around and about the balloon. There was evidence that the guard rope enclosed a space on this occasion about the balloon in the shape of the lid of a coffin, so that if the supporting poles did not fall in the longer portion of the space, they were of such length that of necessity they would fall outside. On the occasion of the accident the pole had fallen without causing injury (whether it fell inside of the enclosure or not there was no proof to show), and it was while the effort was being made to re-erect it that it fell,' striking a carpenter’s horse and bounding therefrom, injured Mrs. Benick.
[614]*614By the terms of the contract already stated, the relation of Hanna to the appellant was that of an independent contractor. He was free “to exercise his own judgment and discretion as to the means and assistants he might think proper to employ about the work, exclusive of the control and direction in this respect” of the appellant. Deford v. Keyser, 30 Md. 203. So regarding him, the general rules applicable are well settled. First, when an owner and proprietor of land employs a competent person to do work, which of itself is not a nuisance, or of which the necessary or probable effect would not be to injure others, and such person is an independent contractor, the employer is not responsible for such negligence as is entirely collateral to, and not a probable consequence of the work contracted for. Cooley on Forts, 547; St. Paul Water Co. v. Ware, 16 Wall. 566; Deford v. State, use Keyser, supra; Suburtan Co. v. Moores, 80 Md. 348; Randleson v. Murray, 8 Adol. and Ell. 109.
And secondly, when a person is on the premises by invitation, it is the duty of the occupant and owner to exercise due and reasonable care that his premises shall be reasonably safe, and that no concealed penis shall environ the visitor, while he himself is.acting in the exercise of due and reasonable care. Cooley on Torts, 718; Sweeny v. Old Colony R., 10 Allen, 372; Bennett v. R. R. Co., 102 U. S. 580; Powers v. Harlow, 53 Mich. 507; Davis v. Central Society, 129 Mass. 367. These rules are succinctly stated in Pickard v. Smith, 10 C. B. N. S. 468, as follows : “ If an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable * *. * The rule, however, is not applicable to cases in which the act which occasions the injury, is one which the contractor is employed to do ; nor by a parity of reasoning in which the contractor is entrusted with the performance of a duty incumbent upon his employer and neglects its fulfillment, whereby the injury is occasioned.”
[615]*615The accident in this case is not attributable to any defect in the plan of ascension, nor to anything growing out of what was intended or was likely to occur in the usual process of sending up the balloon. The cause of it the record shows, was proved to be as follows : “ On the afternoon of the accident, August 29th, 1895, the balloon was in process of inflation and the two supporting poles were in position, when a violent thunder gust came up and so disarranged the balloon as to cause it to veer over and permit a supporting pole to fall to the ground, delaying the ascension but causing no injury, and no proof was offered tending to show that the pole fell without the ropes. In order to get ready for a new inflation of the balloon after the thunder gust ceased it became necessary to re-erect the fallen pole. A carpenter’s horse was placed under it at convenient stages to support it in the elevation. When the top of the pole was at a height, variously estimated from six or eight inches to five or six feet higher than the horse it fell, striking the horse in its descent, which it probably upset, and slid or bounded to the ground; as it struck the ground it either fell or bounded on the heel of the plaintiff, Mary Benick, causing the injury complained of.”
It is not contended there was anything in the sending up of the balloon, or in the needed equipment for such an event, that created concealed dangers from which it became the duty of the proprietor to shield the careless or unwary by the exercise of extraordinary precautions ; and there is nothing in the record to show that in the appointed and usual method of ascension, there was anything dangerous to persons using reasonable care. It is clear, however, from the admitted facts, as we have quoted them from the record, that Mrs. Benick received her injury in consequence of circumstances which did not • lvolve the safety of the ordinary method. The poles h?' j fallen without damage, and the operator then introduced f his own accord, without the knowledge of the appellant, a new appliance not con[616]*616templated by the usual method, that is, a carpenter’s horse, and certainly not within any consent or agency of the appellant. If it was careless to make use of the horse, or if Hanna or his agents were guilty of carelessness in the manner in which it was used, the appellant cannot be held liable, it being shown that Hanna was an independent contractor.
The cases of Conradt et al. v. Clauve, 93 Ind. 476, and of Richmond & M. R. Co. v. Moores, &c., 27 S. E. R. 70, relied on by the appellee, are distinguishable from this • case.
Free access — add to your briefcase to read the full text and ask questions with AI
Page, J.,
delivered the opinion of the Court.
The appeals in these cases are taken from judgments in favor of the appellees for injuries to Mary Benick, alleged to have resulted from the negligence of the appellant in conducting a balloon ascension. The appellant was the lessee of a tract of land near Baltimore City. He had fitted it up, as a pleasure resort, with bowling alleys, shooting gallery and restaurant, and besides furnished various other attractions such as fireworks, acrobatic performances, and other things of a like nature. These were extensively advertised,' [613]*613so that many persons were drawn thither; the daily attendance on week days averaging from i,ooo to 1,500 persons, and three times that number on Sunday. The proprietor charged no fee for admission, but relied for his profits from sales, the hiring of boats and the rentals of places for carousel, shooting gallery, &c.
Among other things designed to attract visitors were the balloon ascensions, and it was at one of these that Mrs. Benick was injured. The ascension that day was conducted by a man named Hanna, who was an experienced and competent balloonist. Under his agreement with the appellant, “ Hanna was to furnish and pay for all the material and appliances used in making the ascensions, and m addition thereto was to employ and pay all of the men required to conduct the ascensions,” and the appellant was to have no part to perform except to furnish the field, pay the price and name the hour for the ascension. The method of the ascension was that usually adopted. Two poles of proper height were first erected and maintained in position by guy lines. A rope passed from the top of one pole to that of the other-, and from this by means of a loop, the balloon was kept in position while being inflated. When it was filled, the rope was loosened from one of the poles, and allowed to slip over the top of the balloon, thus releasing it. When the rope over the balloon (called the ridge rope) is loosened, one of the poles falls to the ground. A guard rope intended to keep the people off, is placed around and about the balloon. There was evidence that the guard rope enclosed a space on this occasion about the balloon in the shape of the lid of a coffin, so that if the supporting poles did not fall in the longer portion of the space, they were of such length that of necessity they would fall outside. On the occasion of the accident the pole had fallen without causing injury (whether it fell inside of the enclosure or not there was no proof to show), and it was while the effort was being made to re-erect it that it fell,' striking a carpenter’s horse and bounding therefrom, injured Mrs. Benick.
[614]*614By the terms of the contract already stated, the relation of Hanna to the appellant was that of an independent contractor. He was free “to exercise his own judgment and discretion as to the means and assistants he might think proper to employ about the work, exclusive of the control and direction in this respect” of the appellant. Deford v. Keyser, 30 Md. 203. So regarding him, the general rules applicable are well settled. First, when an owner and proprietor of land employs a competent person to do work, which of itself is not a nuisance, or of which the necessary or probable effect would not be to injure others, and such person is an independent contractor, the employer is not responsible for such negligence as is entirely collateral to, and not a probable consequence of the work contracted for. Cooley on Forts, 547; St. Paul Water Co. v. Ware, 16 Wall. 566; Deford v. State, use Keyser, supra; Suburtan Co. v. Moores, 80 Md. 348; Randleson v. Murray, 8 Adol. and Ell. 109.
And secondly, when a person is on the premises by invitation, it is the duty of the occupant and owner to exercise due and reasonable care that his premises shall be reasonably safe, and that no concealed penis shall environ the visitor, while he himself is.acting in the exercise of due and reasonable care. Cooley on Torts, 718; Sweeny v. Old Colony R., 10 Allen, 372; Bennett v. R. R. Co., 102 U. S. 580; Powers v. Harlow, 53 Mich. 507; Davis v. Central Society, 129 Mass. 367. These rules are succinctly stated in Pickard v. Smith, 10 C. B. N. S. 468, as follows : “ If an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable * *. * The rule, however, is not applicable to cases in which the act which occasions the injury, is one which the contractor is employed to do ; nor by a parity of reasoning in which the contractor is entrusted with the performance of a duty incumbent upon his employer and neglects its fulfillment, whereby the injury is occasioned.”
[615]*615The accident in this case is not attributable to any defect in the plan of ascension, nor to anything growing out of what was intended or was likely to occur in the usual process of sending up the balloon. The cause of it the record shows, was proved to be as follows : “ On the afternoon of the accident, August 29th, 1895, the balloon was in process of inflation and the two supporting poles were in position, when a violent thunder gust came up and so disarranged the balloon as to cause it to veer over and permit a supporting pole to fall to the ground, delaying the ascension but causing no injury, and no proof was offered tending to show that the pole fell without the ropes. In order to get ready for a new inflation of the balloon after the thunder gust ceased it became necessary to re-erect the fallen pole. A carpenter’s horse was placed under it at convenient stages to support it in the elevation. When the top of the pole was at a height, variously estimated from six or eight inches to five or six feet higher than the horse it fell, striking the horse in its descent, which it probably upset, and slid or bounded to the ground; as it struck the ground it either fell or bounded on the heel of the plaintiff, Mary Benick, causing the injury complained of.”
It is not contended there was anything in the sending up of the balloon, or in the needed equipment for such an event, that created concealed dangers from which it became the duty of the proprietor to shield the careless or unwary by the exercise of extraordinary precautions ; and there is nothing in the record to show that in the appointed and usual method of ascension, there was anything dangerous to persons using reasonable care. It is clear, however, from the admitted facts, as we have quoted them from the record, that Mrs. Benick received her injury in consequence of circumstances which did not • lvolve the safety of the ordinary method. The poles h?' j fallen without damage, and the operator then introduced f his own accord, without the knowledge of the appellant, a new appliance not con[616]*616templated by the usual method, that is, a carpenter’s horse, and certainly not within any consent or agency of the appellant. If it was careless to make use of the horse, or if Hanna or his agents were guilty of carelessness in the manner in which it was used, the appellant cannot be held liable, it being shown that Hanna was an independent contractor.
The cases of Conradt et al. v. Clauve, 93 Ind. 476, and of Richmond & M. R. Co. v. Moores, &c., 27 S. E. R. 70, relied on by the appellee, are distinguishable from this • case. In the former the defendant was proprietor and manager of the fair grounds. Parts of the ground were allotted to target shooting. The plaintiff being ignorant of the danger hitched his horse where it was shot. Here was the concealed danger. The plaintiff was entitled to notice of it, for the reason that the defendant in the discharge 01 his duty to make the place reasonably safe to those who came on his ground by invitation, was bound to notify them of dangerous places, and that not to do so was negligence. In the other case cited, there was no guard-rope and no notification made, that the poles would fall when the balloon went up.
In Knottnerus v. R. R. Co., 93 Mich. 348, a person was injured while on a roller-coaster. It was said in the opinion of the Court, “a roller-coaster is not a snare or an explosive. It is in and of itself notice of its character and purpose. Its presence and operation involve no danger to those who keep away from it, nor does its enjoyment necessarily involve injury. It cannot be said that by granting permission to operate a switch-back at North Park, the defendant was guilty of negligence * * * They do not thereby become insurers of the persons while in attendance upon the attraction, or responsible for the carelessness of the operators.” This case is cited as being pertinent to the questions involved.
It follows from what has been said, the Court committed error in granting the plaintiff’s first prayer and refusing the [617]*617defendant’s first and second. The judgment therefore must be reversed and new trial awarded.
(Decided June 28th, 1898).
Judgment reversed and new trial awarded.