Bashford v. Slater
| Decision Date | 09 June 1959 |
| Docket Number | No. 49679,49679 |
| Citation | 96 N.W.2d 904,250 Iowa 857 |
| Parties | Donald J. BASHFORD, Appellee, v. Lester (Bud) SLATER, Hawkeye Racing Association, an Iowa Corporation, and Grundy County Agricultural Society, also known as Grundy County Fair Association, and/or Grundy County Fair Board, an Iowa Corporation, Appellants. |
| Court | Iowa Supreme Court |
K. L. Kober, Waterloo, for appellants Lester (Bud) Slater and Hawkeye Racing Association; Mosier, Mosier, Thomas & Beatty, Waterloo, and Willoughby, Strack & Sieverding, Grundy Center, for appellant Grundy County Agricultural Society.
Kennedy, Kepford, Kelsen & Balch, Waterloo, for appellee.
This action resulted from an accident on the Grundy County Fair Grounds quarter mile race track when the plaintiff, Donald J. Bashford, was struck by a car driven by the defendant Lester (Bud) Slater and severely injured. Plaintiff brought the action against Slater, the Hawkeye Racing Association, hereinafter referred to as the Association, and the Grundy County Agricultural Society, hereinafter referred to as the Society, as alleged joint venturers. A jury trial resulted in a verdict and judgment for plaintiff against all defendants in the sum of $49,864. The trial court determined that the verdict was excessive and ordered a remittitur reducing the amount to $33,364, or a new trial. The remittitur was filed. All defendants appealed. Numerous errors were assigned but for various reasons only three contentions involving failure to have a fair trial need be considered herein, i. e., jury misconduct, the refusal to accept into evidence defendants' waiver agreement (Exhibit 11), and surprise. Only a brief statement of the case will be necessary at this time.
On the evening of August 22, 1953, in accordance with the previous written agreement between the Association and the Society, stock car races were scheduled on the Grundy County track.
The plaintiff had been engaged as official starter and flagman by the Association, and during the past two years he had officiated over fifty races for it.
Actual races are preceded by a warm-up period and time trials. On this occasion, as per custom, the track had been wet down and several racing cars had been driving around 'packing the track.' Some were taking their fast laps prior to the time trials.
The weather was clear, but it was 'getting along toward dusk.' There was a difference of opinion whether the track and grandstand lights were on at the time. Stock cars used in these races have no headlights.
The plaintiff testified that about 7:30 p. m. Mr. Boslough, president of the Association, approached him and said, They were then in the infield near the place where the official flags were kept. This place was a spot about two feet from the track across from the grandstand. Customarily the flagman operated within a foot or two of that spot when signaling the drivers.
The official's flags are of different colors and have different meanings. By their use the official communicates his orders to the drivers. The red flag 30 inches square means stop. Plaintiff was wearing the usual black and white checkered shirt on this occasion.
Mr. Chumley, a former president of the Association and a past racer and official, testified the flagman is to be on the ground early to see that the cars hold their positions until the track is packed down or 'ironed out.' When instructed to do so by the president, the flagman gives the cars the signal for them to speed up, 'step on it', and take their 'fast laps.' In accordance with custom and usage, when the flagman clears the track, he 'stands wherever it is safe, or at the edge of the track.'
After the request to 'get the show on the way', plaintiff started onto the track with a red flag. While he remembered nothing after that until he regained consciousness some six weeks later, all others who witnessed the accident testified that he proceeded straight out onto the track some 10 to 20 feet toward the grandstand and flagged down one of the cars driven by Robert Ledtje. As he stepped back toward the infield he was immediately struck by the car following Ledtje driven by the defendant Slater. The plaintiff suffered severe and grievous injuries necessitating large hospital and doctor expenses. He suffered 25% permanent and partial disability.
Plaintiff's petition in two counts, one based upon general negligence and the other on res ipsa loquitur, was attacked by motion to make Count I more specific. Certainly in view of the complicated nature of this case and the divergent interests of the defendants, it should have been granted. It was not. The trial court's error in overruling that motion is conceded by plaintiff, but the full significance of that error did not appear until both sides had rested and the wide variety of evidence which had been admitted under the pleadings was found to raise many disturbing fact and law questions apparently not contemplated by the parties. As a result, a large part of the pleadings, motions and rulings are found following, not preceding, the introduction of evidence. This gave rise to the contention by all parties that the issues were being changed in violation of Rule 88, R.C.P., 58 I.C.A. We must observe at this point that much of the confusion in this action could have been avoided by the use of a pre-trial conference and the clarifying of the issues prior to the acceptance of testimony.
A careful search of the record reveals that the plaintiff based his claim upon the personal negligence of the defendant Slater, imputed to the other defendants as joint adventurers engaged in a common purpose. His belated amendment to conform to the proof clarifies this point and states:
* * *.'
On the other hand the defendants from the start appeared concerned about the relationship between the plaintiff and the Racing Association at the time of the accident. To interrogatories submitted on September 30, 1955, the plaintiff stated at the time of the accident he was not 'performing any duties or services for pay', and was not 'an employee of the defendant, Hawkeye Racing Association'; also that 'Plaintiff was not acting as a racing official for any of the defendants at the time the injuries were sustained.'
Defendants contend until plaintiff amended his petition the true basis of his claim was not revealed. It is true plaintiff always denied that at the time of the accident there was any employer-employee relationship existing with any defendant, and maintained that he was merely a member of the general public. On the other hand, considerable evidence appears bearing on some such relationship, and the defendants Slater and the Association amended their answer on September 21, 1957, to allege 'that at the time the plaintiff was allegedly injured * * * he was employed as a recing official by the Hawkeye Racing Association and assumed the risk of any injuries he may have suffered by reason of the nature of his employment.' As to the nature of that relationship, when it began, and its terms, fact questions which should have been determined by the jury under proper court instructions, the record is most unsatisfactory. Whether it is claimed that plaintiff was an independent contractor, a casual employee, or a regular employee of the Association, does not appear. That issue, if it was an issue, received no attention by way of court instructions, with the exception of Instructions 5 and 7 where reference is made to the burden of proof in an employer-employee relationship as it relates to contributory negligence and the mitigation of damages.
I. We have been unable to resolve this case on the issue of contributory negligence or assumption of risk. The members of the court taking part in the determination of this case are equally divided thereon, and we think it will serve no useful purpose to here discuss our differences in applying the well- known rules to the evidence disclosed by the record. On a retrial, the evidence may or may not be the same.
II. The participating members of this court are also evenly divided as to whether the issue of an employer-employee relationship was involved in the action, along with the consequential effect by the application of Rule 97, R.C.P. In a retrial, such issues, if desired, may be clearly raised, and those issues determined by the jury under proper instructions. As a warning, we may observe, due to the different class of defendants, Pandora's box may be opened and many perplexing fact and legal questions may be involved, including the application of the Workmen's Compensation Law, I.C.A. § 85.1 et seq.
III. Although after the parties had rested, the trial court permitted the plaintiff to amend his petition making specific his allegation of negligence, it refused to allow in defendants' answer to the amended petition an affirmative allegation that the plaintiff was an employee of the...
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