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THE LAW OF MOTION PICTURES
likely to be suffered at the hands of performers.66 It has been said in England that the proprietor impliedly warrants his play to be safe.67 But this theory would seem to break down where the entertainment given is known
he maintained that inasmuch as the defendant knew the purposes for which the hall was let and the inadequacy of the gallery to accommodate a large crowd, he was guilty of negligence, and should have been held liable.
The dissenting opinion seems to have carried greater weight than the prevailing opinion in the later case of Atchison Ely v. Thomas, 104 A. D. (N. Y.) 368; 93 N. Y. Supp. 693.
66 Brown v. Batchellor (1908), 69 Atl. (R. I.) 295. It was held that a bill of complaint alleging that defendants were negligent in failing to provide suitable protection upon the stage to prevent a performer on a bicycle from riding off the stage stated a good cause of action.
Cole v. Rome Sav. Bank (1916), 96 Misc. (N. Y.) 188; 161 N. Y. Supp. 15. Defendant Edwards had engaged a trapeze act. During the progress of the performance the mechanism broke and an iron hook flew out and struck plaintiff in the audience.
“I think upon the evidence in the case a fair question of fact was presented as to whether the Campbell Brothers used due care in the erection and securing of the casting net and as they were hired to give the exhibition from which the proprietor derived profit it was the business of the proprietor and not that of Campbell Brothers. The relation of respondeat superior therefore existed, and the proprietor was chargeable with their negligence.”
67 Cox v. Coulson (Eng.) (1916), 85 L. J. K. B. 1081; 2 Ch. 177; 114 L. T. 599; 60 S. J. 402; 32 T. L. R. 406; rev. 31 T. L. R. 390. Plaintiff was in the audience of a theatre. An actor on the stage, discharging ‘a pistol, injured him. A verdict in plaintiff’s favor was reversed, the Court of Appeal holding that while defendant impliedly covenanted that he would use reasonable care and diligence, he did not warrant that the members of his company would do likewise.