Davies v. Land O'Lakes Racing Association

Decision Date01 April 1955
Docket NumberNo. 36410,36410
Citation69 N.W.2d 642,244 Minn. 248
PartiesRichard N. DAVIES as trustee of Estate of Thomas D. Davies, decedent, Respondent, v. LAND O'LAKES RACING ASSOCIATION et al., Appellants, Freeborn County Agricultural Society, Respondent.
CourtMinnesota Supreme Court

Syllabus by the Court.

1. One who maintains, without adequate safeguards, upon his own premises or upon the premises of another of which he is the possessor (here a race track area upon a fairgrounds) a dangerous instrumentality or condition such as a drainage catch basin subject to overflow from heavy rainfall causing concealment of the basin so as to form a trap to unwary or trespassing children is bound to exercise reasonable care to protect them therefrom. The question is one of negligence--whether the particular facts and circumstances in a given case give rise to a duty which has not been performed. Where one knowingly maintains, unguarded, something that may or is certain to attract children or may present a concealed danger in an area where children are more or less likely to trespass, the legal effect thereof may justify a finding of actionable negligence, I.e., failure to exercise the degree of care commensurate with and therefore demanded by the circumstances.

2. An appellant may not assign error affecting other parties but may assign only error that is prejudicial to him.

3. Defendants on appeal cannot question the dismissal of an action against a codefendant in whose favor a verdict has been returned and against whom appellants have asserted no claim.

4. An instruction which is neither objected to at the trial nor challenged in a motion for a new trial becomes the law of the case on appeal even though it may be erroneous.

5. The record on the trial of this case presented fact questions for the jury's determination and there was ample evidence to sustain the jury's verdict in favor of the plaintiff.

William P. Sturtz, Meighen, Sturtz & Peterson, Albert Lea, for appellants.

Floyd V. Nichols, Nichols & Tuveson, Albert Lea, for respondent Davies.

Joseph R. Gunderson, Albert Lea, Gallagher, Madden & Zimmerman, Waseca, for Freeborn County Agr. Soc.

NELSON, Justice.

Richard N. Davies, trustee of the estate of and father of Thomas D. Davies, decedent, brought this action in the district court of Freeborn county against the Land o' Lakes Racing Association; Arthur Dutcher and Harold Dutcher, its managing officers; and the Freeborn County Agricultural Society to recover damages resulting from the accidental drowning of Thomas a minor, in a drainage pit constructed as a catch basin by defendant racing association on the Freeborn county fairgrounds. The defendants, at the close of plaintiff's testimony and again at the close of all the testimony, moved for a directed verdict in their favor. These motions were denied. The jury returned a verdict for the plaintiff in the sum of $4,000 against the defendant racing association and Arthur and Harold Dutcher and a verdict in favor of defendant Freeborn County Agricultural Society. The defendants Land O' Lakes Racing Association and Arthur and Harold Dutcher then moved the court in the alternative for judgment notwithstanding the verdict or a new trial. The motions were denied and these defendants appeal therefrom. The rule in this state is that a motion for judgment notwithstanding the verdict will be granted only when the evidence is conclusive against the verdict. Trovatten v. Hanson, 171 Minn. 130, 213 N.W. 536; Mayzlik v. Lansing Elev. Co., 241 Minn. ---, 63 N.W.2d 380, and cases therein cited.

Resolving all conflicts in favor of the prevailing party below, the following appear to be the facts: On May 4, 1953, the Land O'Lakes Racing Association, a Wisconsin corporation, then operating a number of one-fifth mile race tracks in Wisconsin, Michigan, and Minnesota, leased a portion of the fairgrounds from the Freeborn County Agricultural Society and within a few days began constructing one of its race tracks thereon. All its race tracks are operated on leased land, and in each instance the construction conforms to a standard uniform design. The racing association engaged the services of Emil Olson & Sons, road contractors, to construct the track, and they began work May 10, 1953.

An accident occurred on the leased premises on May 25, 1953, when plaintiff's decedent died by drowning in one of two pits or catch basins constructed upon the leased premises by the defendant racing association to afford proper drainage to its track. The pits were dug about ten feet square and six feet deep with perpendicular sides. They were part of the track construction at each of the oval ends near the inner edge of the track. The track itself, which had not been completed at the time of the fatal accident, was about 50 feet wide. At the oval ends, it was built so that the outer edge was raised two feet above the track and the inner edge two feet below it, giving a pitch of four feet. It was located inside the regular one-half mile track in front of the grandstand which the fair board maintained. The track had a dirt surface, and, since it was necessary to keep it dry, these pits or catch basins were constructed and connected to the track with ditches which afforded necessary drainage in case of rains. The earth removed in the construction of the catch basins was not left on the edge of the pit but was utilized in the construction of the track. Water accumulating on the track would flow into each of these pits through short ditches, each about two feet wide. Water accumulating in the catch basins had to be pumped out onto the flat ground. Nothing was done to cover the pits or to guard them in any way. Following the time the lease was made the Dutcher brothers had spent some four days on the grounds during the period of construction. The drainage pits, which were constructed according to the standard design of their race tracks, were familiar to them in placement and location. The construction of the track and installation of the lighting facilities had not been completed on May 25, 1953.

The fairgrounds are located to the north of the city of Albert Lea in Freeborn county. There was some conflict in the testimony regarding the custom of children playing on the fairgrounds and about the race track. The Dutcher brothers and some of the employees constructing the track testified that they did not see any children in the area, but there was ample testimony to the effect that children did play there frequently; that it was common especially after school; that they would play games and otherwise move about the grounds; and that they played in the infield which is the race track area. It appears from the testimony that it was more or less impossible to keep the children out of the grounds. The testimony indicates that the gates were often left open about the fairgrounds and also the race track and that children frequented the track area. Defendants Dutcher, while denying that they had any direct knowledge of children frequenting this area to that extent, yet in effect admitted that fairgrounds and race track area were commonly frequented by children and that this was within their knowledge.

There was a very heavy rainfall in the Albert Lea area on the night of May 24 and 25, 1953, and this resulted in there being pools and puddles of water all over the fairgrounds on May 25, the day of the drowning. There was water on the race track, half way around, on each side. There was an accumulation of from 18 inches to two feet of water on the track toward the inside edge on the oval ends. Plaintiff's decedent, a child somewhere between five and six years of age, was found drowned in one of the catch basins shortly after four o'clock in the afternoon. It does not appear from the record at the trial whether the decedent stepped or fell directly into the catch basin from dry ground or stepped into it from water overflowing its edges or from one of the small ditches connecting the pit with the race track. One of the defendants, Harold Dutcher, testified that he found a little boy's shoe next to the inside rail and about 15 feet from the opening leading to the catch basin and that tracks led up to the spot where the shoe was found and continued on up to the opening and into the channel between the race track and the catch basin.

The defendants, on appeal, assign as error the trial court's failure to direct a verdict in their favor pursuant to the rule of law announced by this court in Stendal v. Boyd, 73 Minn. 53, 75 N.W. 735, 42 L.R.A. 288, and also the trial court's acceptance of Restatement, Torts, § 339, as the law applicable to the facts in the case. They further contend that the evidence does not support a finding of negligence or of proximate causation if there was negligence. They also contend that, if the verdict against them is sustained, the verdict for the defendant in favor of the Freeborn County Agricultural Society is not sustained by the evidence and is contrary to law. They assign as error the trial court's failure to charge the jury that the agricultural society had actual knowledge of the existence of the catch basin, and that because of such actual knowledge its liability was the same as the liability of the other defendants, should liability be established.

1. The trial court submitted this case to the jury according to the rule found in Restatement, Torts, § 339, that a possessor of land is liable for injuries to trespassing children where:

'(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

'(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and

'(c) the children because of their youth do not discover the condition or realize the risk...

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    ...dismissing a negligence action as a matter of law for injuries suffered by an adult in a swimming pool); Davies v. Land O'Lakes Racing Ass'n , 244 Minn. 248,69 N.W.2d 642, 647-48 (1955) (upholding the district court's decision that declined to dismiss a negligence action as a matter of law ......
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