Opinion
January 5, 1939.
Present — Sears, P.J., Crosby, Lewis, Taylor and Dowling, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The jury were instructed (1) that if they found that the plaintiff had looked for seats behind the screened portion of the grandstand and had found none available there, they could then find the defendant negligent for having failed to place a screen in front of the seats occupied by the plaintiff; (2) that they could also find the defendant negligent if they found that it had negligently failed to provide lights of such character that its patrons might reasonably follow the course of balls batted or thrown into the unscreened portions of the grandstand. Under no view of the evidence could the defendant be held negligent for failing to place a screen before the seats occupied by the plaintiff. Hence it was error to submit that ground of liability to the jury. Since special questions, involving the grounds of liability, were not submitted to the jury, we are unable to determine on which theory the jury based their verdict. All concur, except Crosby and Taylor, JJ., who concur in the reversal but vote to dismiss the complaint on the ground that the risk of injury from a batted ball is one assumed by the spectator. (The judgment is for plaintiff in an action for damages for personal injuries sustained by reason of being struck by a ball at a night ball game. The order denies a motion for a new trial.)