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Law School Case Brief

Herrick v. Wixom - 121 Mich. 384, 80 N.W. 117 (1899)


A trespasser who suffers an injury because of a dangerous condition of premises is without remedy. But where a trespasser is discovered upon the premises by the owner or occupant, he is not beyond the pale of the law, and any negligence resulting in injury will render the person guilty of negligence liable to respond in damages.


Plaintiff customer filed an action against defendant circus owner to recover for injuries he sustained as a result of the owner's negligence in permitting a dangerous explosive to be used in a dangerous manner. Plaintiff was invited by defendant owner’s son at the circus and while attending a show, he was struck in the eye by a piece of a giant firecracker that had been detonated. The circuit court found in favor of the defendant and plaintiff appealed.


Did the trial court err in instructing the jury that in order for plaintiff to recover for injuries, he should have been in the tent by the invitation of some person having authority to allow him to go in?




The court held that that the trial court's instructions were erroneous. in so far as it was intended to preclude recovery in any event if the guest was found to be a trespasser. The question of whether a dangerous experiment should have been attempted in his presence, or whether an experiment should have been conducted with due care and regard to his safety, could not have been made to depend upon whether he had forced himself into the tent.

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