Bates v. Sirk

• Decision Date: 14 December 1976
• Docket Number: No. 13679,13679
• Citation: 230 S.E.2d 738,159 W.Va. 917
• Court: West Virginia Supreme Court
• Parties: Leauren L. BATES v. Kennie L. SIRK d/b/a Sirk's Super Speedway.

Page 738

230 S.E.2d 738

159 W.Va. 917

Leauren L. BATES v. Kennie L. SIRK d/b/a Sirk's Super Speedway.

No. 13679.

Supreme Court of Appeals of West Virginia.

December 14, 1976.

Syllabus by the Court

'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts which the jury might properly find under the evidence must be assumed as true.' Point 6, Syllabus, Nesbitt v. Flaccus, 149 W.Va. 65 (138 S.E.2d 859) (1971).

John S. Sibray, Charleston, Roger J. Morgan, Clarksburg, for appellant.

Jones, Williams, West & Jones, James C. West, Jr., Clarksburg, for appellee.

CAPLAN, Justice:

In this civil action instituted in the Circuit Court of Harrison County, the plaintiff, Leauren L. Bates, sought recovery from the defendant, Kennie L. Sirk, for injuries he allegedly received as a result of the defendant's negligence. Upon trial of this matter the jury returned a verdict in favor of the plaintiff in the sum of $50,000.00. Thereafter, the defendant moved the court to set aside the verdict and award him a new trial. That motion was sustained by the trial court by an order dated March 18, 1975, from which order the plaintiff prosecutes this appeal.

Leauren L. Bates was employed by Kennie L. Sirk who operated a race track known as Sirk's Super Speedway. This track was located on West Virginia State Route No. 73 and featured nighttime automobile racing. It was a dirt track, approximately sixty feet wide on the running surface and was oval-shaped in design. The grandstand was located on the westerly side of the oval and was constructed at a level approximately five feet higher than the track surface. Flood lights were placed on poles around the track so that the 'track will have clear lighting.'

The center of the oval-shaped track is known as the infield area and is not as well lighted as the track. This is the area in which a two-truck and an ambulance are maintained for use in emergencies. It was the infield area in which the plaintiff was injured.

The plaintiff was employed by the defendant in a dual capacity. He was a 'push truck' operator and a 'cone setter' or 'retriever'. In fulfillment of his first duties he maintained a truck equipped with a broad steel bumper and, upon the occurrence of a wreck on the track, he used this truck to clear the track of disabled vehicles. In his second capacity he assisted the official starter of the race. It was his duty at the start of the race to set a cone at a particular place on the track for the purpose of properly aligning the racing automobiles. Thereafter, when the last automobile passed, he was to pick up the cone and carry it back into the infield.

It was during his performance of the latter duty that he incurred the injuries for which he instituted this action. On June 7, 1968, at the beginning of the last race on the program, the plaintiff, in the performance of his employment, went out onto the track and retrieved the cone. After he had proceeded some twenty to thirty feet into the infield, one of the automobiles participating in the race went out of control, entered the infield area and struck him, inflicting painful, serious and permanment injuries upon him.

It is pertinent to note that the defendant, although eligible as an employer, failed to subscribe to the workmen's compensation fund. By reason of this failure, the defendant, under the provisions of W.Va.Code, 1931, 23--2--8, as amended, was deprived of the common law defenses of the fellow-servant rule, assumption of risk and contributory negligence.

The plaintiff's position relative to his allegations of negligence on the part of the defendant is fully stated in Paragraph IV of his complaint, which reads as follows:

That the injury to the plaintiff was due to the negligence of the defendant in the following respects: (a) the defendant failed to furnish plaintiff a reasonably safe place in which to work; (b) defendant failed to have a proper or adequate guard rail around the infield area of the race track so as to prevent automobiles from running onto the infield areas; (c) defendant failed to furnish a pit in which employees would be protected from vehicles running off of the track and onto the infield; (d) defendant failed to have adequate lighting on the infield area of the race track; (e) defendant failed to furnish an adequate warning system to those on the infield so that they would know when vehicles were out of control and in danger of coming across the infield; (f) defendant failed to have an adequate number of employees to perform the work.

The answer of the defendant asserted several defenses, all of which have been abandoned except his contention that there was a total absence of proof of negligence on his part. The defendant charges that the plaintiff's allegation that he, Kennie Sirk, failed to furnish said plaintiff a reasonably safe place in which to work is without merit inasmuch as the plaintiff failed to establish any standard of care, the violation of which could create liability.

At the trial evidence was adduced by the plaintiff in an endeavor to prove that the defendant was negligent in having failed to furnish him a reasonably safe place in which to work. The evidence related the facts and circumstances surrounding the accident and the manner in which it occurred. There was substantial agreement among the witnesses for both parties as to such facts and circumstances. Evidence was offered on behalf of the plaintiff to show that there were no fences, bunkers or other protective devices designed to protect those in the infield area from injury resulting from mishaps on the track. There was undisputed evidence which revealed that it was not unusual for racing cars on the defendant's track to spin out of control and go into the infield areas; in fact, there was evidence that such incidents occurred frequently, if not nightly.

The defendant countered with evidence designed to show that his track had the same design and facilities as those of similar tracks in the area. This, asserted the defendant, tends to establish a standard of safety for his employees, beyond which he was not compelled to go. Furthermore, the defendant argues, the injury complained of resulted from the failure of the plaintiff to quickly proceed to his truck in the center of the infield. He contends that the plaintiff stopped to watch the race about twenty feet from the track and that this was the proximate cause of his injury. This evidence was disputed by the testimony of Frank Baker, then employed by the defendant as a starter, who testified that the plaintiff was struck 'from the rear as he was walking away from the car.' He said that the plaintiff was walking toward his truck in the center of the infield and estimated that he was twenty to twenty-five feet from the track when he was struck. That witness also testified that after the plaintiff was injured, he discontinued the use...