The opinion of the court was delivered by
Tyler, J.The plaintiff’s evidence, upon which he rested his case, and upon which the defendants requested the court to direct a verdict in their favor, tended to show that the defendants, on September 8, 1884, and on the four succeeding days, held a joint agricultural and mechanical exhibition in Howard Park, in Burlington; that the plaintiff paid his entrance fee on the first day of the exhibition and was rightfully upon the grounds ; that there was placed upon the grounds, about ten rods from the superintendent’s tent, and in nearly a direct line between the tent and Floral Hall, a striking machine, consisting of a box from two and a half to three feet long, a foot and a half high, and about sixteen inches wide, and so contrived that a person striking with a mallet, weighing eight or ten pounds, could test his strength by means of a pointer or indicator arranged in the box; that the plaintiff was passing along by the usual route from the superintendent’s tent towards Floral Hall, and when near the machine, and not observing it, some person suddenly took up the mallet, and in swinging it to strike a blow hit the plaintiff and broke his leg. It appeared that the accident occurred between two and three o’clock in the afternoon; that the machine was seen at that place by plaintiff’s witnesses as early as twelve o’clock; and one witness was confident he saw it there between eight and nine o’clock in the morning.
The question presented by the plaintiff’s evidence was whether or not the defendants were guilty of negligence in suffering this machine, with no guard around it, to remain upon the grounds at this place and at a time when visitors were *254constantly passing and re-passing it. The court was requested to hold, as matter of law, that they were not.
Corporations are liable for their negligent torts, and for the negligence of their officers and servants acting in the course of their official duty or employment, in the same manner and to the same extent that individuals are liable under the same circumstances. Mor. on Cor. (2d ed.) ss. 725, 734; Boone on Cor. s. 84.
As the defendants were holding a public exhibition in this park, and inviting visitors thereto, it was their duty to render it a reasonably safe place for all persons who might lawfully be there in attendance.
It was claimed in argument by defendants’ counsel that as the machine was not placed there by the. defendants, and its use was foreign to the purposes for which these societies were organized, it was a case of ultra vires, unless the defendants recognized the act as done in their business ; that there was no evidence that defendants had any interest in the machine, or that it was there by their permission, or that it was being used with their knowledge. There was evidence, however, that it was one of a kind of machines commonly exhibited at public gatherings of this kind, and that there were two or three of them on the grounds at this exhibition and in about the same locality. The court could not assume, as matter of law, that these machines, as well as the peddlei-s’ stands, victualing tents- and places of amusement wei’e not there by the defendants’ permission. If it wei’e not to be assumed that the machine was there by license, it was a question of fact whether it had been so long upon the gi’ound that the defendants ought, in the exercise of reasonable care, to have known of its presence. Whether it was dangerous or not depended upon its construction and the manner in which it was used. These were questions of fact, or at least mixed questions of law and fact, which could not properly have been decided by the court.
A remark made by Eedeiele, Ch. J., in Vinton v. Schwab, *25532 Vt. 614, is applicable to this case : “ But when there is no conflict in the testimony in regard to the particular facts, - that will not always make it a mere question of law which the court may determine. If it still rests upon discretion, experience and judgment, it is matter of fact and not of law merely.” It was .said by Boss, J., in Whitcomb v. Denio, 52 Vt. 382: “ Whatever may be the rule in other states in regard to its being the duty of the court, when the facts are undisputed, to determine as a matter of law, whether a thing has been done within a reasonable time, or with reasonable care, diligence, or prudence, or to determine any other fact which involves the judgment of the trier upon an existing state of facts and circumstances, it has been the almost universal practice in this State, from the earliest recollection of the oldest members of the court and bar, to submit such question to the determination of the jury.” Fassett v. Roxbury, 55 Vt. 555. The only departure from this practice was in the often quoted case of Briggs v. Taylor, 28 Vt. 180.
A case in point, as illustrative of the one under consideration, is Lax v. Corporation of Darlington, 31 Eng. Rep. 543, cited in plaintiff’s brief. In that case the defendants were owners of a cattle market, and in the market-place they had erected a statue, around which they had placed a railing as a a fence. The plaintiffs attended the market with their cattle and occupied a particular site, for which they paid a toll. A cow belonging to them, in attempting to jump the railing, injured herself and died from the injuries. The jury found that the railing was dangerous. The court held that the defendants, having received toll from the plaintiffs and invited them to the market with their cattle, were in duty bound to keep the market in a safe condition ; and that an action would lie for the plaintiffs’ loss.
It is insisted by defendants’ counsel that, to entitle the plaintiff to recover, it must appear affirmatively that he was in the exercise of at least ordinary care for his own protection ; and that it did affirmatively appear that he was exercising no *256care at all, but on the contrary, was guilty of gross negligence.
To enable the plaintiff to make out a case it was incumbent on him to show that the defendants were negligent in regard to this machine, and that no want of care on his part contributed to the happening of the accident. Not that he could testify, or that witnesses could testify, in his behalf that he was in the exercise of due care; but the burden was on him to produce such a state of the evidence as would enable the trier of the fact to say that the defendants were negligent and that his own conduct was prudent. Walker v. Westfield, 39 Vt. 246; Bovee v. Danville, 53 Vt. 183.
The plaintiff’s evidence shows the manner in which he was walking past this machine, not knowing of its existence. Whether he was in the exercise of that degree of care which the law requires, or whether he was guilty of contributory negligence, was a question of fact for the jury under proper instructions from the court. Hill v. New Haven, 37 Vt. 501.
The judgment of the County Court affirmed.