Sample v. Eaton

WOOD (Parker), J.

Action for damages for personal injuries sustained by a spectator at a wrestling exhibition, when he was struck by a bottle of Coca-Cola that was thrown by another spectator. The defendants were: the proprietor of the wrestling club that conducted the exhibition; and one of the operators of the refreshment concession at the exhibition. In a jury trial, a nonsuit was granted. Plaintiff appeals from the judgment of nonsuit.

On June 4,1952, plaintiff attended a wrestling exhibition at the Olympic Auditorium in Los Angeles. He had attended wrestling matches regularly at that place for approximately four years. On said June 4 he paid the required admission fee and sat in the end seat of the press row, apparently the row next to the wrestling ring. The wrestlers in the main event were one Romero and Dangerous Danny MeShane.

Plaintiff testified that for approximately five minutes before the first fall in the main event, MeShane was very rough, was pulling hair, pulling trunks and jumping outside the ring; for two or three minutes before and two or three minutes after the first fall, the spectators on the opposite

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side of the ring from plaintiff were jumping up, fighting, booing and throwing paper cups, peanut sacks and “stuff like that” into the ring, and several persons were standing in the aisle shouting and throwing various articles; after the first fall McShane “strutted” around the ring, shouted at the customers on the opposite side of the ring (opposite plaintiff) and shook his fist at them; plaintiff stopped looking at the customers in order to talk to defendant Mr. Baton, who had come to the place where plaintiff was sitting (plaintiff and Mr. Baton were acquaintances); then plaintiff heard a commotion and turned, “and all of a sudden a terrific force hit me [him] in the mouth”; he looked down and saw that a full bottle of “coke” had fallen on his foot. He testified further that one of his teeth had cut through his upper lip, several of his teeth were loosened, and his jaw was broken.

On cross-examination he testified that about three or four minutes elapsed between the first fall and the time that he was struck in the mouth by the Coca-Cola bottle; he did not know where the bottle came from; on previous occasions when he had purchased liquid refreshment at the auditorium, the vendor put the refreshment in a paper cup; while he was in the dressing room receiving treatment for his injuries, the man who threw the bottle was brought into the room; the man said that he “lost his head” and threw the bottle.