Herrick v. Wixom

121 Mich. 384



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 brought a writ of error to the Circuit Court for the County of Shiawassee (Michigan), which found in favor of defendant circus owner on his action of trespass on the case 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. The guest was attending a show at the owner's circus when he was struck in the eye by a piece of a giant firecracker that had been detonated. The evidence showed that the guest had been invited to the show by the owner's son, who did not have authority to do so. The trial court instructed the jury that in order for the guest to recover, it had to find that he was in the tent where he was injured, by the invitation of some person having authority to allow him to go in. If he was a mere trespasser, who forced his way in, then the owner owed him no duty that would have enabled him to recover.


Was the jury instruction given by the trial court faulty, insofar as it was intended to preclude recovery in any event if the plaintiff was found to be a trespasser?




On review of the judgment in favor of the owner, the court reversed and ordered a new trial, holding that the trial court's instructions were erroneous. That instruction was faulty 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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