delivered the opinion or the Court.
The declaration of the appellant is as follows:
“ For that, whereas, heretofore, on the day commonly known as Derby Day, on, to wit, the 25th day of June, 1893, said defendant in said county, on the certain race course then and there in its possession, gave and conducted a public exhibition of horse racing and thereto invited the public at large, charging and receiving an admission fee, plaintiff paid said fee and attended said exhibition, and was then and there, and at all times thereabouts, in the exercise of all reasonable and ordinary care, and lawfully in and upon the ground in defendant’s possession and control, set aside by defendant for the use of the spectators at said races, *482and plaintiff alleges that it then and there became, and was the duty of defendant to use all reasonable and ordinary care to keep said grounds in a reasonably safe and suitable condition for said spectators, and therein defendant made default, and so carelessly and negligently kept said grounds, that a horse drawing a vehicle, ran unguarded, unattended and unhindered, from a cause or causes which, upon diligent inquiry, plaintiff has not been able to learn, but which are to defendant well known, through and among the spectators, and in so doing ran upon and against the plaintiff, hereby,” etc.
On demurrer final judgment was rendered for the appellee, and from that judgment this appeal is prosecuted.
We know nothing judicially of the arrangements for the accommodation of spectators at horse races. If the horses run around upon a road separating an inner inclosure from an outer one, and if within the inner inclosure are spectators, some on foot, and some in carriages, it is not apparent how the proprietors of the race course could hold the horses of the spectators. In the nature of things some, one in charge of any carriage would be also in charge of the horse or horses attached. Unless it be negligence to admit at all spectators in carriages, which, we suppose, would not be contended, there could be no neglect charged upon the appellee because a horse ran away.
The description in the declaration of a race course and what happens there, is not sufficient to show any duty of the appellee, and the averment of duty is idle. Angus v. Lee, 40. Ill. App. 304.
Uegligence by omission can only be where a duty is not performed. C. & W. I. v. Roath, 35 Ill. App. 349.
The judgment is affirmed.