Blake v. Fried

• Decision Date: 17 March 1953
• Citation: 173 Pa.Super. 27,95 A.2d 360
• Parties: BLAKE et al. v. FRIED et al.
• Court: Pennsylvania Superior Court

95 A.2d 360

173 Pa.Super. 27

BLAKE et al. v. FRIED et al.

Superior Court of Pennsylvania.

March 17, 1953

Action by grandstand spectators at stock car race against operators of race track for injuries sustained when wheel came off stock car, bounced into the air and cleared protective fence 14 feet high and fell into grandstand. The Court of Common Pleas No. 7 of Philadelphia County, at No. 5283, March Term 1951 (tried in C.P. No. 4), entered judgments for plaintiffs and defendants appealed. The Superior Court, Nos. 190 and 191, October Term, 1952, Ross, J., held that defendants had not been negligent.

Reversed and rendered.

George P. Williams, III, Orr, Williams &amp Baxter, Philadelphia, for appellants.

Samuel B. Brenner, Philadelphia, for appellees.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS and GUNTHER, JJ.

ROSS Judge.

This is an action of trespass to recover damages for personal injuries sustained by the plaintiffs while they were spectators at stock car races conducted at defendants' stadium. After a jury verdict for each plaintiff, the defendants moved for judgment n. o. v., and after their motion was overruled and judgments entered on the verdicts, they appealed to this Court.

There is no dispute as to the facts. On the evening of September 4, 1950, plaintiff paid admission to and occupied seats in defendants' stadium for the purpose of watching stock car races. Stock cars are ordinary passenger automobiles with fenders removed and motors altered for greater speed. Defendants' installation, known as Yellow Jacket Stadium, consisted of a one-fifth mile macadam track, oval in shape and banked at the outside circumference with an uncovered grandstand on one side of the racing area. A heavy timber guard rail, or ‘ crash rail’, approximately three feet high, encircled the outer edge of the track. About one foot behind the guard rail and extending completely around the track were a number of iron poles about 25 feet high, upon which were located the floodlights which illuminated the infield and track. Strung between these iron poles and extending from the ground to a height of 14 feet was a mesh fence constructed of wire one-fourth inch in diameter. The protective fence completely enclosed the racing oval and was reinforced by three heavy cables strung behind and against it. Defendants' grandstand lay parallel to one side of the track and was set back therefrom a distance of 6 to 10 feet.

On the night in question, plaintiffs occupied seats in the fourth or fifth row of the grandstand. At approximately 10:30 p. m., during the fourth or fifth race, a wheel came off one of the stock cars as it sped past the grandstand. This wheel rolled to the guard rail, hit it, bounded some 24 feet into the air, cleared the protective fence and fell into the grandstand, injuring plaintiffs.

The theory of negligence relied upon by plaintiffs in their complaint and at the trial was that defendants failed to erect proper safeguards on their grandstand. The only question of negligence submitted to the jury by the court below was whether defendants had provided a reasonably safe place for spectators at their stadium. The issue before this Court is whether there was any evidence adduced at the trial to support that theory of negligence.

Plaintiffs concede, properly, that the mere happening of an accident is no evidence of negligence, Thompson v. Gorman, 366 Pa. 242, 246, 77 A.2d 413, but advance the theory that a special and expanded responsibility is cast upon the operators of places of public amusement for profit as regards the bodily safety of their patrons. In support of what they denote as ‘ this exceptional doctrine’ they cite During v. Hyman, 286 Pa. 376, 133 A. 568, 53 A.L.R. 851, and Skeen v. Stanley Co. of America, 362 Pa. 174, 66 A.2d 774, and conclude from the fact of recovery by plaintiff in each of these cases that as a general proposition of law the proprietor of a public place of amusement warrants the physical safety of his paid patrons. In both cases patrons of moving picture houses were injured, the During plaintiff by collapse of a seat and the Skeen plaintiff by the fall of a bolt, evidently from defendant's ceiling. Both decisions rested on application of the doctrine of exclusive control, which is an exception to the general rule of proof of negligence, viz.: ‘ When the thing which causes the injury is shown to be under the management of the defendants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from a want of care.’ [ 286 Pa. 376, 133 A. 569.] Although plaintiffs in the present case do not specifically refer to the doctrine of exclusive control, they invoke it by citation of their cases. In Miller v. Hickey, 368 Pa. 317, at page 322, 81 A.2d 910, 918, the Supreme Court, speaking through Mr. Justice Bell, in restricting application of the doctrine to a limited field of cases, stated: ‘ Even in the leading case of Durning v. Hyman, 286 Pa. 376, 133 A. 568, 569, 53 A.L.R. 851, where a child sued a moving picture theater for injuries caused by the breaking of a seat, the Court in removing a nonsuit said: ‘ The defendant, in such instances, is called upon to show, not necessarily the cause of the accident, but that he exercised due care to prevent harm . Spees v. Boggs, 198 Pa. 112, 47 A. 875,52 L.R.A. 933. If such facts appear in the testimony of the plaintiff, a nonsuit should be entered (Stearns v. Ontario Spinning Co., 184 Pa. 519, 39 A. 292,39 L.R.A. 842), or, if established in defense, binding instructions are properly given, but in one way or the other a satisfactory explanation is required. * * * She had the right to rely on the assumption that the defendant had used reasonable care for her safety. Her proof made necessary some explanation by defendant showing due precaution had been exercised to prevent the happening of the accident which occurred.’ ' In the present case there was no allegation or proof that the precautions were sub-standard or defective and consequently a proper case for the application of the doctrine of exclusive control has not been made out, and the general rule as to proof of negligence obtains.

Negligence implies the absence or want of care which a reasonable man would exercise under the circumstances. Maternia v. Pennsylvania R. R. Co., 358 Pa. 149, 56 A.2d 233. There must appear negligence for which these defendants are responsible. Vetter v. Great A. & P. Tea Co., 322 Pa. 449, 453, 185 A. 613, 615. It need not be proved by direct evidence but may be inferred from attendant circumstances if the facts and circumstances are sufficient to reasonably and legitimately impute negligence. Rockey v. Ernest, 367 Pa. 538, 80 A.2d 783; Wright v. Straessley, 321 Pa. 1, 182 A. 682. When negligence is inferred from the circumstances rather than established by direct proof, those circumstances must point to but one conclusion -that defendant was negligent. de-franCisco v. lafaCe, 128 Pa.Super. 538, 542, 194 A. 511. Since there was no direct evidence of negligence, we examine the attendant circumstances with a view to determining whether they logically support an imputation of negligence.

The unbending test of negligence with respect to methods machinery and appliances is the ordinary usage of business. Delaware River Iron-Ship-Building Co. v. Nuttall, 119 Pa. 149, 13 A. 65; Titus v. Bradford, B. & K. R. Co., 136 Pa. 618, 20 A. 517; Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. 552, 51 A. 347; Farne v. Pennsylvania Lighting Co., 275 Pa. 444, 119 A. 537. In these cases the defendant presented evidence tending to show that the appliance or method plaintiff contended would have prevented the accident was not one in general use in its business. In each case it was, for that reason, held error to submit the question of defendant's negligence to the jury. In later cases the courts of this Commonwealth have adhered to general use as a test of negligence with respect to methods and appliances employed in business and have held that in the absence of proof by plaintiff that defendant deviated from ordinary standards, the question of negligence is not for the jury. The following cases illustrate the governing principle. In Mills v. Lit Brothers, 347 Pa. 174, 32 A.2d 10, an action of trespass was instituted to recover damages for injuries sustained by the 3 1/2 year old plaintiff in defendant's department store. The evidence disclosed only that the minor plaintiff left its mother and walked to a moving escalator. Plaintiff was discovered shortly thereafter with the fingers of his left hand caught in the narrow aperture where the tread of the escalator meets the comb plate of the exit platform and disappears into the floor. The trial judge directed the jury to return a verdict for the defendant. The Supreme Court affirmed the judgment and stated in 347 Pa. at pages 175-176, 32 A.2d at page 11:‘ The defendant was under a duty to use reasonable care in keeping its escalators in a safe condition, but there is not a scintilla of evidence that this duty was violated. The instrumentality causing this accident was a recent installation of modern design. There was no testimony of any defect in its structure or operation. * * * the evidence does not show that either the mechanism or its appliances were constructed in an...