Endorf v. Johnson
| Decision Date | 15 March 1932 |
| Docket Number | No. 7221.,7221. |
| Parties | ENDORF v. JOHNSON. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hanson County; R. C. Bakewell, Judge.
Action by Marie Endorf, as administratrix of the estate of Henry F. Endorf, deceased, against D. K. Johnson. From a judgment on directed verdict and from order denying plaintiff's motion for new trial, plaintiff appeals.
Affirmed.
Danforth & Seacat, of Alexandria, for appellant.
Fellows, Fellows & Whiting, of Mitchell, for respondent.
This appeal is from a judgment on a verdict directed for defendant, respondent herein, and from the order denying plaintiff's motion for a new trial. Plaintiff, appellant herein, is the widow, and the administratrix of the estate, of Henry F. Endorf, deceased, Respondent Johnson is the owner of an amusement park at which he conducted automobile races on July 4, 1929. Endorf was killed by one of the racing cars. Appellant alleged, and the evidence showed, that the track was very dusty; that the fences, where there were any, outside and inside the track, were not such as to prevent spectators from going onto the track; that the seating facilities were inadequate; and that spectators crossed the track from its outer and its inner edge in order to find better points of vantage. It was alleged that, while Endorf was crossing the track in an effort to find a suitable and safe place to view the races, he was struck by one of the racing cars, receiving injuries from which he died.
[1] Endorf, at the time of his death, was 48 years of age, was in full possession of his faculties, had been repeatedly at this amusement park, had been observing the three cars racing around the half-mile track in a ten-mile race for approximately five minutes, when, after the leading car or cars had passed, he placed himself on the track, ten feet from its inner rim in the path of the third racing car which was following the leading car or cars at a distance of approximately one hundred feet. He was struck by it and mortally injured. Endorf either had left the inner rim and moved ten feet nearer the median line of that fifty-foot track--as seems most probable from the evidence adduced--or he had left the outer rim of the track, and had arrived at a point ten feet from the inner rim when struck by the racing car.
In support of her contention that the question of Endorf's contributory negligence should have been submitted to the jury, appellant cites Ellingson v. World Amusement Service Ass'n, 175 Minn. 563, 222 N. W. 335. In that case the injury was caused by one of the racing automobiles leaving the track and plunging into a crowd of spectators. In the case at bar Endorf was killed when he went onto the track and placed himself in front of a racing car. The facts in the case at bar bear less resemblance to the facts in the Ellingson Case than to the facts in Baldwin v. Locomobile Co., 143 App. Div. 599, 128 N. Y. S. 429, 431, cited in the Ellingson Case, where the New York court, in holding the injured party guilty of contributory negligence, said: “He deliberately went into a place of known danger, in the imminent presence thereof, and without exercising the slightest precaution.”
That Endorf was negligent is clear. Appellant contends, however, that because of respondent's willful and wanton misconduct in the management, operation, and construction of his amusement park, respondent is liable notwithstanding Endorf's negligence. Appellantrelies on the decision of this court in Carlson v. Johnke, 234 N. W. 25, 72 A. L. R. 1352. It was not intended in that opinion to approve the doctrine of comparative negligence; nor was it intended to depart from the rule, long established in this state, that there can be no recovery for an injury caused by the common, mutual, concurring negligence of both parties, regardless of...
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