I think this judgment should be affirmed rather than reversed. Irrespective of the question whether the fireworks company was under the direction and control of the defendant, or whether it was an independent contractor, I think the evidence shows that the defendant was guilty of negligence and that the recovery was proper.
The court correctly charged the jury that the defendant, having accepted an admission fee, owed its patrons the duty, at least, of reasonable care within its park. One who enters upon the premises -of another by invitation has the right to assume that reasonable care will be exercised to protect him from injury. And one who thus invites another, expressly or impliedly, is chargeable with the duty of exercising that degree of care. (Sterger v. Van Sicklen, 132 N. Y. 499.) This principle applies to the proprietor of a store (Bunnell v. Stern, 122 N. Y. 539 ; Swinarton v. Le Boutillier, 7 Misc. Rep. 639; affd., 148 N. Y. 752) and to a bathing. house keeper (Bird v. Everard, 4 Misc. Rep. 104) and to the proprietor of a public hall (Currier v. Boston Music Hall, 135 Mass. 414).
In the case of Swinarton v. Le Boutillier (supra) a cash boy in the employ of the defendant snapped a pin which penetrated the eye of a customer. The theory upon which the plaintiff was allowed to recover was that the defendant had not checked the habit of snapping pins amongst its cash boys, the custom having been prevalent for such length of time in defendant’s store that he ought to have known that such dangerous practice existed. The defendant having invited the plaintiff to his premises for the purposes of trade, the principle was applied that he must use reasonable diligence in suppressing such evidently dangerous practice.
The case of Conradt v. Clauve (93 Ind. 476) is particularly applicable to the case at bar. There the managers of a fair,, charging an admission fee, had allotted a part of their grounds to target shooting. Without knowing the direction of the bullets or that this practice *585was carried on, the plaintiff hitched his horse in an ordinary place and it was shot and killed. The court says: “ The practice in target shooting appears to have been a part of the entertainment carried on at the fair, and as the defendants were the owners of the premises and the managers and controllers of the fair, the practice in target shooting was a part of their exhibition, and under their supervision and control as much as any other part of the fair. And those having charge of the practice, as well as those engaged in it, while,'perhaps, not strictly agents or servants of the defendants, were acting under the license and permission of the defendants; and such a relation existed between them as will hold the defendants liable for injuries resulting from their negligence in not properly controlling the conduct and management of this part of their exhibition.”
The plaintiff’s witnesses Sturgeon, Wachmeyer and Snyder all testified to facts from which the jury had a right to say that for some considerable time before the accident to plaintiff, rocket sticks had fallen in close proximity to the pavilion in which the plaintiff and other spectators were gathered for the purpose of witnessing the display. As one of the witnesses expresses it, the rockets appeared to have been fired toward the pavilion, and the pavilion was a place provided by the defendant from which spectators could obtain a view of the exhibition, chairs and seats being placed therein.
In addition to the plaintiff’s testimony the general manager of the defendant himself testifies that he was on an island immediately in front of the pavilion, with his family, and that sticks had fallen in the water near him, to the number of. six or a dozen, and that this alarmed him, and that he got into a boat and went to the dock for the purpose of stopping the firing of rockets in that direction. When he arrived he learned of the plaintiff’s injury, and sent a man to stop the firing and was told that all the rockets had been discharged.
Whether those engaged in the firing of the rockets were servants of the defendant or not, it became the duty of the general manager upon observing that the sticks were falling in dangerous proximity to the spectators to at once see to it that their direction was changed. The rockets were not discharged all at once, but at intervals, and *586the jury were entirely justified in saying that the firing had continued in this dangerous manner for such a period of time prior to the accident as made it negligence on the part of the general manager of the defendant not to' have sooner prevented it.- Those who had gathered at the defendant’s park and paid admission thereto were entitled to be protected1 against such an obviously dangerous thing as the continued falling of rocket sticks in close proximity to the place provided for them to obtain a proper view of the -exhibition. The defendant. had sufficient control over the fireworks company either to have stopped this practice or put an end to the exhibition.
But it is suggested that the case was not tried upon this theory, •and that the court did not in words charge the jury that they might hold the defendant liable for not stopping the dangerous firing after discovering the direction in which the rocket sticks were falling. It is true hé did not use this precise language; but the cáse was submitted to the jury substantially on this theory. On- motion of the defendant the court had rejected the theory of the defendant that it could not .be liable because" it had. an independent contract- with the fireworks company, and that its servants engaged in discharging the fireworks were not the servants of the defendant, and had held that the defendant might be liable for any negligent act taking place within its park which it could have prevented by reasonable care. The court stated to the jury that the claim of the plaintiff was that the rockets were: negligently manipulated and discharged in the direction of the spectators, and that the contention of the defendant was that they were properly fired, but that currents of air carried the -sticks in a wrong direction. In -another portion Of his charge he says that it Was; the duty of the defendant only to use ordinary care and ordinary diligence in seeing that no accident should happen to any of its patrons.
While the language of the court does not quite meet the rule under which I think the defendant should be held liable,- yet if does substantially. The jury were not permitted to hold the defendant liable on the theory that the servants of the fireworks company were servants of the defendant, but rather that the defendant Owed the. duty of reasonable /protection to the plaintiff from any dangerous agency which it had provided for the. entertainment of its patrons. Moreover, there: was no request on the part of the *587defendant that the court should charge any proposition, nor any exception to what he did charge.
The judgment and order should be affirmed, with costs.
Judgment and order reversed and new trial granted, with costs to appellant, to abide event.