Alden v. Norwood Arena

• Decision Date: 14 February 1955
• Citation: 332 Mass. 267,124 N.E.2d 505
• Parties: Carmi R. ALDEN, Adm. v. NORWOOD ARENA, Inc. Helen E. LITTLEFIELD v. NORWOOD ARENA, Inc. Joan NEILSON v. NORWOOD ARENA, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 505

124 N.E.2d 505

332 Mass. 267

Carmi R. ALDEN, Adm. v. NORWOOD ARENA, Inc.

Helen E. LITTLEFIELD v. NORWOOD ARENA, Inc.

Joan NEILSON v. NORWOOD ARENA, Inc.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 5, 1954.

Decided Feb. 14, 1955.

Samuel P. Sears, Lawrence R. Cohen, Michael T. Prendergast, Boston, and Roger F. Turner, Milton, for plaintiff.

Joseph F. Dolan, Boston, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

The defendant, a corporation, owns and operates an arena in Norwood where so called 'stock car' races are conducted. On the evening of September 24, 1949, the plaintiffs Littlefield and Neilson and the plaintiff Alden and his wife went to the arena to see the races. They purchased tickets for the box seat section. Alden and his wife and the plaintiff Neilson sat in either the fourth or the fifth row of boxes and the plaintiff Littlefield sat 40 or 45 feet away from them.

During one of the races as 'the cars came into the last turn a sort of gasp went up from the crowd' and the plaintiff Alden observed a wheel in the air. Believing it was going to strike his group, he yelled to them 'to duck.' '[A]ll ducked and all came up except Mrs. Alden.' She was struck by the wheel on the side of the head and neck and from these injuries she died two days later. She was survived by her husband and a son and will be referred to hereinafter as the deceased. The plaintiffs Neilson and Littlefield were also injured.

From the accident described above these three actions of tort arose. The plaintiffs Neilson and Littlefield each bring an action to recover for personal injuries sustanied by them. The plaintiff Alden as administrator of his wife's estate sues to recover for her death and conscious suffering. Verdicts for the plaintiffs were returned and the cases come here on various exceptions taken by the defendant.

1. The defendant's exceptions to the denials of its motions for directed verdicts on the issue of negligence must be overruled. A summary of the pertinent evidence is as follows: Inside the arena is a canted, elliptically shaped track of about one eighth of a mile. There is a grandstand surrounding most of the track which accommodates 14,000 to 15,000 spectators. The track is completely surrounded by a chain link fence 8 feet high which rests on an embankment 4 to 5 feet high, and there is a guard rail between the track and the fence. The height of the fence in front of the reserved or box seat section is 12 feet from the level of the track. The distance from the outside edge of the track to the first tier of box seats is 15 to 20 feet.

This was the second year that races had been conducted at the arena. Racing took place three or four nights a week with eight to ten races a night over a period of five or six months. Four to twenty cars participated in each race. Accidents and collisions of the automobiles were a nightly occurrence. Alden had attended the races about fifteen times and on three or four occasions his wife and accompanied him. Both had observed accidents resulting from collisions but neither had ever seen 'a wheel go into the bleachers, barriers or fly into the crowd, or fly over the bleachers.' The plaintiffs Neilson and Littlefield had each attended the races once prior to September 24, 1949, but neither had seen a wheel come off a racing car.

One Fay, who was employed by the defendant as supervisor of the arena, testified that he had been working for the defendant for about three years in that capacity and that this was the first time he had ever seen a wheel go into the box seats, but prior to the accident he had observed twelve to fifteen wheels come off racing cars and hit the guard rail or fence; that on two occasions he had seen wheels go over the bleachers and completely out of the track; and that he saw some go into the crowd.

An officer of the defendant testified that prior to the accident he had seen one wheel come off and go into the bleachers or unreserved section. He further stated that he had received reports from employees of the defendant that 'wheels came off stock cars and had gone into the crowd eight to ten times prior to the Alden accident.'

One witness estimated that the wheel that caused the accident cleared the fence in front of the boxes at a height of 50 feet. No warning of any sort concerning the danger from flying wheels was given to patrons of the arena.

The duty owed to invitees by one who operates a place of amusement has been set forth in several decisions. Shanney v. Boston Madision Square Garden Corp., 296 Mass. 168, 5 N.E.2d 1; Lemoine v. Springfield Hockey Association, Inc., 307 Mass. 102, 104, 29 N.E.2d 716; Katz v. Gow, 321 Mass. 666, 75 N.E.2d 438; Shaw v. Boston American League Baseball Co., 325 Mass. 419, 90 N.E.2d 840. The rule deducible from these decisions is that the proprietor of a place of amusement owes to his patrons the duty to use due care to see that his premises are reasonably safe for the intended use or to warn them of dangers which are not obvious. But as to dangers of which the patrons have knowledge, or which are obvious to a person of ordinary intelligence, there is no duty to warn. Thus in Shaw v. Boston American League Baseball Co. it was held that a spectator at a baseball game who was familiar with the game assumed the reasonable risks and hazards inherent in it, and one of those hazards was the possibility of being hit by a foul ball. To the same effect is Katz v. Gow, 321 Mass. 666, 75 N.E.2d 438, where it was held that a patron at a driving range assumed the risk of being hit by a golf ball.

The defendant argues that each of the spectators here involved assumed the risk of being hit by a flying wheel as an incident inherent in the sport of automobile racing and as a risk obvious to a person of ordinary intelligence. We do not agree. While the deceased and the plaintiffs Neilson and Littlefield were not unfamiliar with stock car racing, the jury could have found that none of them had ever seen a wheel fly off during a race. And the evidence falls far short of showing that this was a hazard which was so open and obvious that as mater of law they must be taken to have assumed it. On the contrary the evidence shows that the flying off of a wheel was a somewhat infrequent occurrence.

But that is not an end of the matter. The defendant was not an insurer, and to recover the plaintiffs must show some breach of duty on the part of the defendant. The plaintiffs do not contend that the defendant ought to have taken greater precautions by way of screens, fences, or guard rails than it did. The breach of duty on which the plaintiffs rely was the failure of the defendant to warn of the danger. There was no such warning here and we are of opinion that the defendant could have been found to be negligent in this respect. It is true that the flying off of a wheel did not happen with great frequency but it was by no means an isolated or highly improbable occurrence. Compare Hall v. Brooklands Auto Racing Club, [1933] 1 K.B. 205. The jury could have found that the danger was such that the defendant should have anticipated it and given suitable warning. See Kushner v. McGinnis, 289 Mass. 326, 194 N.E. 106, 97 A.L.R. 578; Restatement: Torts, § 343. If despite such warning persons saw fit to attend the races, then they assumed the risk of being hit by a flying wheel. Volenti non fit injuria.

2. The defendant's exceptions to rulings on evidence may be briefly disposed of. The testimony of Fay and Forrest, employee and officer respectively of the defendant, to the effect that they had seen or had knowledge of wheels flying off racing cars on other occasions, was clearly admissible to prove that the defendant knew of the dangers to which its spectators were subjected. The testimony of the plaintiffs Alden and Littlefield that no warnings of the dangers from wheels flying off were given by the defendant was likewise admissible since the plaintiffs' contention is that the defendant had a duty to warn and was negligent in failing to do so.

The defendant offered in evidence a plan of the race track which had been approved by the department of public safety. No question was raised as to the authenticity or correctness of the plan but its admissibility was challenged by the plaintiffs. The judge stated that he would admit it as a plan of the track. Counsel for the defendant stated that he desired to offer it on the issue of due care. The plaintiffs' counsel then stated that they did not contend that there was any violation of law with respect to the track but based their cases on common law negligence. There was no error. The defendant was given an opportunity to put in the plan to show the layout of the track and declined to avail itself of it. Inasmuch as no contention was being made that the track was improperly constructed or did not conform to the law, it is difficult to see how it had any relevancy on the issue of negligence.

3. The defendant urges that, apart from the question of negligence, it was entitled to a directed verdict on the count for conscious suffering in the action brought by the administrator of the deceased. The evidence material to this issue was as follows: Following the accident the deceased was taken to the Norwood Hospital. The next day, September 25, 1947, at 11 a. m. she was transferred to the Boston City Hospital. She lived until 2 p. m. on September 26. The deceased's husband was a physician. While the deceased was at the Boston City Hospital her husband was almost constantly at her bedside. He testified that she showed signs of consciousness in the following manner: He 'took her hand and would hold her hand and sit beside her bed. He would put his lips down close to her ear and repeat two short phrases over and over. Her mouth was badly battered and she couldn't speak but she would squeeze his hand many times. The...