Grahn v. Northwest Sport, Inc.

• Citation: 210 Or. 249,310 P.2d 306
• Parties: Merdena A. GRAHN, Appellant, v. NORTHWEST SPORT, Inc., a corporation, Respondent.
• Decision Date: 24 April 1957
• Court: Supreme Court of Oregon

Page 306

310 P.2d 306

210 Or. 249

Merdena A. GRAHN, Appellant, v. NORTHWEST SPORT, Inc., a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 21, 1957.

Decided April 24, 1957.

Francis Yunker, Portland, for appellant. On the brief were Yunker, Fewless & Hannam, Portland.

Edward L. Fitzgibbon, Portland, for respondent. With him on the brief were Black, Kendall & Fain, Portland.

Before LUSK, P. J., and ROSSMAN, WARNER, and KESTER, JJ.

LUSK, Justice.

Plaintiff, Merdena A. Grahn, was seriously injured when she was hit by a racing automobile driven by one Jerry Watts on a race track operated by the defendant, Northwest Sport, Inc. She brought this action against the defendant to recover damages for her injuries. The circuit court allowed a motion by the defendant for judgment of involuntary nonsuit, and plaintiff has appealed, assigning such ruling as error.

The plaintiff and her husband were followers of the sport of automobile racing. On the afternoon of Sunday July 9, 1950, they went to the defendant's race track at the invitation of their friend, Paul Hendricks, who was the owner with Art Lombardi of a new racing car, to watch Hendricks try out the car. No races were held on that day. In the party were also Mr. Lombardi, Harry H. Walters, mechanic for Hendricks and Lombardi, Mrs. Walters, and the two children of Mr. and Mrs. Grahn. They arrived at the track early in the afternoon, and the plaintiff with her family went into the grandstand and there remained until about 6:00 o'clock watching the Hendricks and several other cars 'practicing,' as it is called, and occasionally during that time looking at motorcycle races which were going on at an adjoining track. There were about 100 people in the grandstand. About 6:00 o'clock, the practice sessions being over, the plaintiff, with her family, left the grandstand and went down onto the race track. Others did likewise, and some 25 or 30 people were gathered in more or less of a group on the track when the accident occurred. The plaintiff and her husband and two children were standing on the track inside the crash rail, a low, heavily constructed barrier at the outer edge of the track. The plaintiff was leaning against the crash rail. While they were there the Hendricks car, which was parked in the infield, was driven onto the track by Watts, who had obtained permission to do so from Hendricks and Lombardi. He was told to drive slowly. According to the witness Walters, who was standing within a few feet of the plaintiff, he drove twice around the track at a speed of 55 or possibly 60 miles per hour, but on the last lap, just as he came out of a curve and was approaching the group of spectators, he speeded up, 'poured on the gas,' as Walters phrased it, apparently lost control, for he 'came right at us,' and ran into the plaintiff. Mr. Grahn was able to save himself and the children, but could not reach his wife and remove her from the path of danger.

The complaint charged the defendant with negligence in the following particulars:

'a. In allowing the said motor vehicle to be operated at a high, dangerous and excessive rate of speed so that the said motor vehicle could not be controlled while allowing this plaintiff to be inside the crash rail surrounding the said track;

'b. In allowing this plaintiff to be within the crash rail and in failing to warn her of the danger involved;

'c. In allowing the operator of the said motor vehicle to race upon the track while this plaintiff and others were within the crash rail;

'd. In failing to police the said drivers while upon the said track so as to prevent drivers from operating on the said track while this plaintiff was within the crash rail thereof.'

The controlling question in the case is whether the plaintiff was an invitee of the defendant at the time she was injured, or a mere licensee. The only witnesses were the plaintiff, her husband, Mr. Walters, and Mr. James Ryan, former president of the defendant corporation. Mr. Ryan testified that speed contests at which admissions were charged were conducted at the track; that members of the Hardtop Association, to which Hendricks belonged, competed in these races and were permitted the use of the track for practice sessions on days other than race days but not on Sundays unless Sunday was a race day. Members of the public were invited to the practice sessions by interviews on the radio, and the witness knew that people came to practice sessions to watch the cars being tried out and the motorcycle races as well. People were encouraged to come to watch the practice sessions. The cars and the people were not supposed to be on the track at the same time. On a race day the people were not allowed on the track until the race program was over. On a practice day, during the practice sessions, it was the rule to keep the people off the track. On a practice day 'there might be a car practicing at ten o'clock in the morning and no car practicing again until three in the afternoon, so that in between that time we made no attempt to keep people off the track.' The drivers knew the rule and were not supposed to take their vehicles out on the track until the people were cleared from the track area, and usually either he (the witness) or some other member of the corporation, or its employes or police engaged to police the area, kept the cars off the track when people were there. People were not invited to come to the track on Sundays to watch practice sessions because they did not have practice sessions on Sundays. Drivers and car owners had been told that they could not practice on Sundays which were not race days. The witness was at the track on the morning of July 9, 1950, and left instructions with Larry...