concurring and dissenting:
I agree that judgment n. o. v. should be entered in favor of appellant Pittsburgh Athletic Co., Inc., for no negligence on its part was shown. In my opinion, however, the jury could properly find that appellant Three Rivers Management Corporation was negligent; I therefore dissent from the order entering judgment n. o. v. in favor of it.
Appellee was hit by a baseball that came into the stands in the foul ball zone. She had not taken her seat; rather, *91she was walking in a concourse used by ballpark patrons to move about the stadium. Testimony established that this concourse circled the ballpark; that on the side of it facing the field there was a wall about four feet high, with about seven feet of open space above that, extending to the ceiling, which was apparently formed by a higher tier of seats; and that in the concourse were refreshment stands and restrooms. Appellee had been standing with a friend looking at the field, but had decided to get something to eat. She had turned her back to the field and walked a few steps away from the wall when she was struck in her left eye by the foul ball, suffering extensive injuries.
The majority’s discussion of whether or not appellee could see home plate from where she had been standing is off the point, because at the timé appellee was hit she had turned away and would not have seen a ball coming from home plate in any case. The important fact is that appellee was standing in a place where, as Management Corporation had reason to expect, ballpark patrons would congregate and would rarely pay attention to the ball game itself. Patrons leaving early or arriving late, or patrons using the restrooms during the game, had to walk along the concourse. Moreover, Management Corporation encouraged and expected patrons to eat food and to buy souvenirs from the stands in the concourse. During all these activities, patrons could not, obviously, be aware of where a batted ball was going, or even, perhaps, whether anyone was at bat at all. The jury evidently found, and properly could have found, from this evidence that Management Corporation was negligent in failing to protect these foreseeable victims of stray baseballs by screening off the concourse in that hazardous corner of the field.
Nor was the jury obliged to find against appellee on the ground that she had assumed the risk of the injuries she suffered. The law on assumption of risk may preclude recovery by a patron injured by a baseball while in his seat in the stands — and appellants have cited many cases, illustrating this proposition. However, it cannot be said that *92because such a patron assumes a risk of injury when he sits in his seat, where he can watch what is going on, he assumes an equal risk when he goes to a concourse that he must use to reach the restrooms, that management encourages and expects him to use to buy food and souvenirs, and where he cannot watch what is going on.1 When patrons arrive at the ballpark, they are held to the common knowledge (even if they have not attended a game before) that foul balls are a part of the game, and that most of the seats will not be screened, Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181 (1953); but they cannot be expected to know in advance that they will be unprotected during such necessary activities as require use of the concourse. Nor do Schentzel or Iervolino v. Pittsburgh Athletic Co., 212 Pa.Super. 330, 243 A.2d 490 (1968), indicate otherwise; these cases concerned only dangers to patrons in the stands.
In denying appellee recovery despite the foregoing considerations the majority has in my judgment made two errors.
First, the majority acknowledges that appellee is entitled to have the evidence regarded in the light most favorable to her, at 88; but it has not, I submit, followed that rule. Thus nowhere in its opinion does the majority recognize the manner in which patrons such as appellee were required, encouraged, and expected to use the concourse, to their foreseeable danger.
Second, the majority sets up and then demolishes a straw man. Thus it says, “We have not found any case from any jurisdiction, and none has been cited to us by the appellee, requiring that every possible area of a stadium be screened if from that spot home plate cannot be seen.” At 89. However, no one, certainly not appellee, argues that there is any such requirement. Appellee only argues that the foreseeably dangerous area where she was should have been *93screened. The majority replies that that area “cannot be considered as one of the most dangerous parts of the grandstand so as to require screening.” At 90; but that is no reply at all. The reasonably prudent man — Management Corporation — must take into account much more than only what is “most dangerous.” “[T]he ‘reasonable man’ is a man who is reasonably ‘considerate’ of the safety of others and does not look primarily to his own advantage.” Restatement of Torts, Second § 283, Comment f. The majority acknowledges that as to the particular area where appellee was, “it is common knowledge that baseballs occasionally traverse.” At 90. The jury could properly find, and evidently did find, that Management Corporation had invited appellee to use that part of the concourse where she was hurt; that it knew, or should have known, that a baseball might be hit there; and that patrons like appellee would not be on the lookout for it.
I therefore cannot join the majority’s characterization of the jury’s verdict in favor of appellee and against Management Corporation as “speculative and conjectural,” at 90; I regard the verdict as entirely warranted.
The judgment entered on the verdict against appellant Three Rivers Management Corporation should be affirmed.
HOFFMAN, J., joins in this opinion.. To hold such different risks equal would require rewriting Judge (later Justice) CARDOZO’s famous pronouncement, “The timorous may stay at home,” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173 (1929), to read: “Take your stretch in the seventh inning or stay at home.”