Herrick v. Wixom

Supreme Court of Michigan · 1899 · Torts

121 Mich. 384 (1899)

Updated July 19, 2026

Tortstrespasserknown trespassernegligencedutycircusdangerous explosiveassumption of risk

Facts

Defendant operated a circus, and during a performance a clown ignited a giant firecracker attached to an upright pipe in one of the rings. Plaintiff was inside the tent and seated about 30 to 40 feet away when a part of the firecracker flew into his eye and destroyed it. The parties disputed whether plaintiff had been invited into the tent by defendant's son or had entered without authority, and there was also evidence concerning plaintiff's intoxication and his attendance at a prior similar exhibition. Plaintiff claimed defendant was negligent in permitting a dangerous explosive to be used in a dangerous manner.

Issue

Whether the trial court erred by instructing the jury that defendant owed no duty permitting recovery if plaintiff was a trespasser, even though plaintiff's presence was known when the allegedly negligent explosive act was performed. On rehearing, the court also considered whether evidence of plaintiff's prior attendance at a similar exhibition and evidence of intoxication were admissible.

Rule

Although a trespasser injured by a dangerous condition of premises ordinarily has no remedy, once a trespasser is discovered on the premises by the owner or occupant, he is not beyond the protection of the law, and negligence causing him injury may create liability. A plaintiff's observation of a prior similar event that produced no injury does not by itself show assumption of the risk of a later dangerous negligent occurrence, because the plaintiff may assume the defendant will exercise due care. Evidence of intoxication at the time of the injury is admissible as part of the res gestae, while evidence of intoxication on other occasions is admissible only on the question of earning capacity.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a county fair in Toledo, Owen Pike slips through an unguarded flap into a private demonstration tent run by Red Lantern Attractions. The stage manager sees Owen sitting in the front row with the rest of the crowd, and moments later an employee carelessly launches a metal-capped pyrotechnic device toward the ceiling, where a fragment breaks off and injures Owen.

If Owen sues for negligence, which is the strongest argument against a directed verdict for Red Lantern based solely on Owen's status as a trespasser?

Explanation. The majority distinguished injuries from dangerous conditions of land from injuries caused by an affirmative negligent act after the trespasser is discovered. Once the occupier knows the trespasser is present, he is not beyond legal protection, and negligence thereafter causing injury may create liability. The case does not convert trespassers into invitees or impose a general duty as to all premises conditions.