Cole v. New York Racing Ass'n

• Decision Date: 13 December 1965
• Citation: 266 N.Y.S.2d 267,24 A.D.2d 993
• Parties: Barbara COLE, Administratrix of the Estate of Sidney Cole, deceased, Respondent, v. The NEW YORK RACING ASSOCIATION, Defendant-Appellant; Arthur Froehlich et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 267

266 N.Y.S.2d 267

24 A.D.2d 993

Barbara COLE, Administratrix of the Estate of Sidney Cole deceased, Respondent, v. The NEW YORK RACING ASSOCIATION, Defendant-Appellant; Arthur Froehlich et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Dec. 13, 1965.

Schaffner & Klaum, Jamaica, for appellant; Benjamin H. Siff, New York City, of counsel.

Herz, Ryder & Cerny, Jamaica, for respondent; George W. Herz, Jamaica, of counsel.

Before CHRIST, Acting P. J., and RABIN, HOPKINS, HILL and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, defendant New York Racing Association appeals from a judgment of the Supreme Court, Queens County, entered January 19, 1965 upon a verdict in plaintiff's favor against it. As against the remaining defendants, the action was discontinued.

Judgment affirmed, with costs.

The action arose out of a fatal accident on July 11, 1961 at Aqueduct Race Track, which is owned and operated by appellant. During the course of an 'exhibition' workout between races, plaintiff's intestate, Sidney Cole, a well known professional jockey, was thrown from his mount after it had twice in rapid succession collided with the infield track rail. This railing, installed in 1959 when the track was completely rebuilt, was constructed of aluminum and supported at ten-foot intervals by metal posts, slightly more than three feet in height. The posts angled away from the railing down to the rim of the infield, where they were imbedded in cylindrical concrete footings about eight inches in diameter, encased in metal. These concrete footings rose from three to five inches above the level of the ground.

In falling, Cole hit the railing with the front of his body and immediately tumbled over it, striking his back and head upon one of these raised concrete bases. He died shortly thereafter.

At the trial plaintiff proceeded on the theory that defendant was negligent in erecting and maintaining these concrete footings exposed and elevated above the ground, and that this negligence, although not the cause of decedent's fall, was the proximate cause of his death.

It was established through the composite testimony of several knowledgeable witnesses that footings elevated in this manner were non-existent at any other track in the country. Defendant's own witness, the architect who had designed the 1959 installation of this track and who had previously participated in the design and construction of several other major tracks throughout the country, testified that the plan he had originally submitted called for these footings to be level with the ground as a safety precaution. The change in design to raise the footings was made, after consultation with track representatives, in order to retard corrosion of the metal posts and thus effect an economy.

Certainly, it was within the jury's competence to infer from this testimony, which was not substantially controverted, that construction of these footings level with or beneath the ground was a general custom observed in the building of race track courses and was intended to decrease the potential of serious harm in the event of falls such as decedent's, that the occasion of such falls was reasonably foreseeable, and that the defendant's deviation from the general custom for reasons of economy was negligence (Shannahan v. Empire Engineering Corp., 204 N.Y. 543, 98 N.E. 9, 44 L.R.A.,N.S., 1185). Garthe v. Ruppert, 264 N.Y. 290, 190 N.E. 643, is not to the contrary; it holds merely that evidence of one or two instances is not sufficient as a gauge of general custom.

Evidence was also adduced that, during the two-year period that the new track was in operation and prior to the fatal accident here involved, 21 jockeys and exercise boys were thrown from horses at appellant's track. While none of them sustained injury by coming into contact with the raised concrete footings, these spills were notice to defendant that raised footings increased the peril. Having in mind that the negligence alleged was related to the consequences of such a fall, we cannot say that evidence demonstrating the foreseeability of such falls had no probative value. 'The risk reasonably to be perceived defines the duty to be obeyed' (Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100, 59 A.L.R. 1253). In any event, appellant does not on this appeal question the competency or relevance of the prior accidents, but limits its contention of evidentiary error to the admission of proof of the death of another jockey, Gilbert, when thrown during a race at appellant's track some three months before the accident in issue. Direct testimony was adduced by plaintiff that Gilbert had struck his head upon one of these footings and had died of a fractured skull. We cannot agree that the circumstances of the falls were so different or the period between them so long as to make the prior accident too remote and, therefore, evidence of it incompetent on the issue for which it was offered (Quinlan v. City of Utica, 11 Hun 217, affd. 74 N.Y. 603). Since appellant, neither here nor in the court below, objected to the evidence of the cause of Gilbert's death on the ground that it was hearsay, but argued only that it was too remote, we do not reach the hearsay question.

Appellant's claim that decedent's assumption of the risks inherent in racing embraced the danger occasioned by the elevated condition of the footings was not supported by any evidence tending to show that the danger was 'ordinary and necessary' to the sport and thus inherent in the activity itself (Murphy v. Steeplechase Amus. Co., 250 N.Y. 479, 166 N.E. 173), or that decedent was or should have been conscious of the danger of the defect (Larson v. Nassau Elec. R.R. Co., 223 N.Y. 14, 119 N.E. 92; Maltz v. Board of Educ. of New York, 32 Misc.2d 492, 114 N.Y.S.2d 856, affd. 282 App.Div. 888, 124 N.Y.S.2d 911).

There was competent expert testimony that the simultaneous contact of decedent's back with the lower supporting post and the raised footing was the competent producing cause of the injury which caused death, and that the force of the blow required to produce the deathcausing injury was less than what would have been required had the footing been covered. A plaintiff need not exclude every cause of injury other than defendant's negligence (Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872). It is sufficient if he shows facts and circumstances 'from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred' (Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828, 830).

Especially is this true in a wrongful death action where 'a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe...