## Facts

- A circus patron attended a circus operated by the defendant and sat near the performance area.
- During the performance, a clown set off a firecracker that struck the patron’s eye, causing loss of sight.
- The patron sued the circus operator for negligence in conducting the performance.
- The defendant argued the patron was not invited into the tent and was therefore a trespasser.
- The trial court instructed the jury that if the patron was trespassing, the defendant owed him no duty and could not be liable; the jury returned a verdict for the defendant.
- On appeal, the case was reversed for a new trial; on rehearing, the court addressed additional evidentiary questions likely to recur at retrial, including prior exposure to a similar exhibition and evidence of intoxication.

## Issues

1. Whether an operator conducting active, potentially dangerous operations on premises owes a duty of ordinary care to a person whose presence is discovered, even if that person is a trespasser.
2. Whether the trial court erred by instructing the jury that a trespasser is owed no duty at all.
3. Whether evidence that the plaintiff previously attended a similar, non-injurious firecracker exhibition is admissible to prove assumption of risk.
4. Whether evidence of the plaintiff’s intoxication at the time of injury (and on prior occasions) is admissible as bearing on the plaintiff’s conduct (including contributory negligence).

## Decision

- The Michigan Supreme Court reversed the defense verdict and ordered a new trial.
- The court held the “no duty to trespassers” instruction was overly broad where the plaintiff’s presence was discovered during the defendant’s active operations.
- On rehearing, the court held evidence of the plaintiff’s prior attendance at a harmless firecracker exhibition was inadmissible to show assumption of risk.
- On rehearing, the court held evidence of intoxication at the time of injury (and, as relevant under ordinary evidentiary limits, prior intoxication) was admissible.

## Legal Principles

- A land possessor or operator who discovers a trespasser in the area affected by ongoing operations must exercise ordinary care with respect to that person; the trespasser is not outside legal protection once discovered.
- A categorical instruction that a trespasser is owed “no duty” is erroneous when the defendant knows of the person’s presence and the injury is claimed to result from negligent active conduct.
- Assumption of risk is not established by proof that a plaintiff previously witnessed a similar but non-injurious exhibition; spectators may rely on the operator’s duty to use due care to prevent dangerous outcomes.
- Evidence of intoxication may be relevant to whether the plaintiff exercised reasonable care and may be admitted subject to standard relevance and unfair-prejudice constraints.

## Conclusion

The court required a new trial because the jury was improperly told the defendant owed no duty if the plaintiff was a trespasser; once the plaintiff’s presence was discovered during an inherently dangerous performance act, ordinary care applied. The court also clarified that prior harmless exposure did not prove assumed risk, while intoxication evidence could be admitted when relevant to the plaintiff’s conduct.


Herrick v. Wixom, 80 N.W. 117 (Mich. 1899)