Benedict v. Union Agricultural Soc.

• Decision Date: 12 February 1902
• Citation: 52 A. 110,74 Vt. 91
• Court: Vermont Supreme Court
• Parties: BENEDICT v. UNION AGRICULTURAL SOC.

52 A. 110

74 Vt. 91

BENEDICT

v. UNION AGRICULTURAL SOC.

Supreme Court of Vermont Windsor.

Feb. 12, 1902.

Exceptions from Windsor county court; Tyler, Judge.

Action for personal injuries by Clyde E. Benedict by next friend, against the Union Agricultural Society. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before TAFT, C. J., and ROWELL, MUNSON, START, WATSON, and STAFFORD, JJ.

Hunton & Stickney, for plaintiff.

Tarbell & Whitham, William E. Johnson, and Darling & Darling, for defendant.

WATSON, J. The defendant is an unincorporated society, and conducted the World's Fair, so-called, at Tunbridge, in the fall of 1897. The society's posters announcing the fair advertised for Thursday, September 30th, a race with bicycles, one mile best two in three, for prizes, and that each rider would be required to pay $1 for competing therefor, with five or more to compete. The plaintiff, Jones, McDonald, and two others entered the race. Jones won the first two heats, and first prize. In the first heat, McDonald was second under the wire, and the plaintiff third. In the second heat the plaintiff was second, and McDonald third. Since thereby the plaintiff and McDonald were tied for the second prize, to determine which should have it the third heat was ridden by them only. It was in the riding of this heat that the plaintiff received the injuries for which he seeks to recover damages in this action. That this heat was authorized and directed by the defendant's managing officers was determined by the verdict. It is contended by the plaintiff that during the race the defendant was bound to keep the track clear, but its duty in this regard was to exercise the care and prudence of a prudent man in like circumstances. That herein the defendant was guilty of a shortage has also been determined by the verdict. The evidence showed that for about 100 feet before the plaintiff was injured, and at the time of his injury, he was riding with his head and body lowered over the handle bars of his bicycle, so that he could not see more than one or two rods ahead. The defendant claimed that to ride in this way, and not to see further ahead, was such contributory negligence on the part of the plaintiff as to prevent a recovery. Subject to exception, the plaintiff was allowed to show the position of a bicycler in racing, as distinguished from ordinary bicycling on the road; that Is, that in racing the rider carries his head down, so that while developing his greatest speed he can see but a short distance ahead. Each competitor was expected by the defendant to make his fastest time. The prizes were offered as an inducement for men to enter the race, and to ride to win if possible. The evidence tended to show that the plaintiff was carrying his head in the common way of wheelmen when riding in a race, to produce the greatest speed, and in the way necessary for that purpose. If it was necessary for the plaintiff to carry his head in that way to produce such speed, it follows that the defendant expected him to carry it so. The evidence had a bearing on the question of contributory negligence, and was properly received. Simonds v. City of Baraboo, 93 Wis. 40, 67 N. W. 40, 57 Am. St Rep. 895.

The expert witness on this question testified that: "Ordinarily, on the road, a person for road riding is nearly erect; some ride erect and some over a little; but ordinarily, for racing, there is a special racing bar and racing machine, which brings the head down." It is argued that there was no evidence tending to show that the plaintiff rode such a bicycle, and therefore the evidence was improper. But this position is untenable, for the testimony of the witness, when fairly interpreted, is not limited to such a machine. He says that in racing, ordinarily, they have such a machine, thus impliedly saying that it is not always so; and his testimony as to the effect of riding with the head down over the handle bars is general,—that the rider gets a purchase on the handle bars, which, by giving him more power to put on his bicycle, increases its speed.

At the close of the evidence the defendant moved for a verdict on the ground that the plaintiff was guilty of contributory negligence. The motion was overruled, to which defendant excepted. Defendant also excepted to the submission of the question of contributory negligence to the jury. Each of these exceptions presents the question whether, as matter of law, the want of due care by the plaintiff contributed to the accident. On this question the evidence will be stated most favorably for the plaintiff.

The evidence shows that in the beat in question, McDonald had the pole, with the plaintiff trailing in his rear as they rounded the turn about 180 feet from the judge's stand, and about 100 feet from the horse and sulky on the track; that thus they continued for some distance, until the plaintiff veered his bicycle to the right to pass McDonald; that thereupon McDonald also veered to the right, crowding the plaintiff off until his bicycle struck the sulky on the track; that by this collision the plaintiff was thrown over his wheel to the ground, thereby receiving the injuries of which he here complains. Some of the evidence tended to show that the horse hitched to the sulky was near the fence on the outside of the track, with the sulky standing diagonally about 10 feet on the track; some, that the sulky was placed round near the fence, so that the horse and sulky were lengthwise with it; some, that they were standing still near the center of the track; and some, that they were moving. The evidence further tended to show that, from the time the plaintiff veered his bicycle to the right until the accident, his head was carried low over his handle bars; that, with his head thus, he could have seen two rods ahead; that the plaintiff and McDonald were riding side by side, from 2 to 3 feet apart, with McDonald a little ahead; that they were thus riding when the plaintiff's bicycle struck the sulky; that they were riding as near each other as they could and not have their wheels collide, with McDonald crowding the plaintiff off by degrees, and the plaintiff was necessarily all of the time bearing to the right, in order not to run into McDonald, and to pass him; that the plaintiff, with his head down, was constantly watching McDonald's bicycle, to avoid a collision with it, and did not look ahead at all; that the sulky was on the track in plain sight of the plaintiff for a distance of 90 to 100 feet before his bicycle struck it and in whatever particular place it may have been on the track, within the scope of the evidence, it could have been seen by the plaintiff during that entire distance, had he raised his head and been looking; that, however, he did not see it until just before his bicycle hit it; that the plaintiff and McDonald were speeding at the rate of a mile in 2 minutes and 10 or 15 seconds, or faster,—at any rate, as fast as they could; and that when racing at so high a speed the direction can be changed in going from 5 to 10 feet. From a little beyond the place where the plaintiff turned to the right to pass McDonald, to the judge's stand, the track widened from about 27 feet to 43 feet, being at the place of the accident 40 feet wide. The plaintiff knew that races, one after another, and some with horses, were taking place on that same track; and he must have known that the society had several marshals present, looking after the races, and keeping the track clear when a race was on. The society had advertised the race with bicycles, offering prizes, and charging each rider a fee to enter it. The plaintiff entered the race under these conditions, and he carried...