Cessna v. Coffeyville Racing Ass'n, 40142
| Decision Date | 09 June 1956 |
| Docket Number | No. 40142,40142 |
| Citation | 179 Kan. 766,298 P.2d 265 |
| Parties | Clarence J. CESSNA, Appellee, v. COFFEYVILLE RACING ASSOCIATION, Inc., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A petition which alleged a racing association conducted automobile races on a dirt track without proper inspection of the cars and with insufficient banking of curves and insufficient fences around the track and a wheel came off a car while racing, traveled a considerable distance beyond the track and hit plaintiff, injuring him, stated a good cause of action as against a demurrer.
Roy Kirby, Coffeyville, argued the cause and Clement H. Hall, Coffeyville, was with him on the briefs for appellant.
Payne H. Ratner, J., Wichita, argued the cause and Payne H. Ratner, Louise Mattox, Russell Cranmer, Dale B. Stinson, Cliff W. Ratner, William L. Fry, A. Wayne Murphy, Ray A. Overpeck, Bernard V. Borst, H. K. Greenleaf, Jr., D. Clifford Allison, Wichita, and Richard L. Becker and Morris D. Hildreth, Coffeyville, were with him on the briefs for appellee.
This was an action for damages alleged to have been sustained when a wheel came off a racing automobile and hit plaintiff. Defendant's demurrer to plaintiff's amended petition was overruled. Defendant has appealed.
The petition alleged plaintiff lived in a house on the fairgrounds; that this house and the stables were adjacent to the race track owned by the city and leased to defendant; that the track was designed for running and trotting races; portions of the track were surrounded by a wire fence about six feet high; that defendant leased the track for the purpose of conducting automobile races and did conduct races according to rules established by it; that he was close to his house and in the area in which he performed his duties as a caretaker of horses; that defendant knew or should have known of the dangers surrounding the racing of automobiles on dirt tracks; that the track designed for horse races was relatively flat and without banks on the turns; that the omission of proper banks on the turns of the track subjected automobiles whih raced over it to unusual and excessive strains, which in turn caused metal portions of the racing cars to break from the automobiles and travel off from the track at high velocities; the fence surrounding the track in the area where plaintiff sustained his injuries was not designed to retain the racing automobiles and parts which became detached due to the stresses produced by turns at high speed on the unbanked dirt track; that on many occasions racing cars had crashed through fences; wheels had become detached and had been propelled over and through fences at high velocities and had traveled great distances; on one occasion a racing car crashed through the fence and collided with the house in which plaintiff lived; on another a wheel had become detached from a racing car and struck a barn in which horses plaintiff cared for were stabled; that nevertheless defendant persisted in conducting the races without providing banks or fences of sufficient strength and height to prevent racing cars and portions of them from crashing through or flying over the fences and injuring persons and property in the vicinity.
The amended petition then alleged that while plaintiff was in the area in which he resided about 180 feet from the fence a wheel came off an automobile which was participating in a race, traveled 227 feet with such velocity that it came through or over the fence, struck plaintiff and broke his leg.
Paragraph 6 was as follows:
'6. Plaintiff's injury was directly and proximately caused by the negligent acts and omissions of the defendant as follows:
'(a) By the failure of defendant to inspect and correct the unsafe and defective condition of the wheel and axle of the car which was equipped with the wheel which struck plaintiff; plaintiff does not know and is unable to allege the precise defect of the wheel and axle,...
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...petition cannot be isolated in considering whether the petition is sufficient to state a cause of action are Cessna v. Coffeyville Racing Association, 179 Kan. 766, 298 P.2d 265; McCollister v. City of Wichita, 180 Kan. 401, 304 P.2d 543; Missionary Baptist State Convention of Kansas v. Sta......
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