Fairmount Union Joint Stock Agricultural Association v. Downey

• Decision Date: 06 January 1896
• Docket Number: 17,878
• Citation: 45 N.E. 696,146 Ind. 503
• Parties: Fairmount Union Joint Stock Agricultural Association v. Downey
• Court: Indiana Supreme Court

45 N.E. 696

146 Ind. 503

Fairmount Union Joint Stock Agricultural Association v. Downey

No. 17,878

Supreme Court of Indiana

January 6, 1896

From the Madison Superior Court.

Affirmed.

St John & Charles and Chipman, Keltner & Hendee, for appellant.

J. E Moore, Freeman Cooper and Goodykoontz & Ballard, for appellee.

OPINION

Hackney, J.

The appellee sought and recovered, in the lower court, a judgment for personal injuries sustained while engaged in a horse race upon the race track of the appellant and from the alleged negligence of the appellant. The complaint was in two paragraphs, the sufficiency of each of which is here presented.

Each paragraph alleged that the appellant had advertised for and invited participation in certain races for prizes, upon its race track during its fair season of 1894, under its control and direction; that the appellee had entered and his horse had been admitted, by the appellant, to participate in one of said races to be held on a day named; that said race had been called by the appellant and the various participants were upon the track; that the appellant carelessly and negligently started a number of the participants in said race without observing that one entitled to start was not with the number so started, but was going in the opposite direction from that in which the race was started and occupying a portion of the track over which the horses so started in said race were to pass that the horses so started by the appellant and the horse so going in the opposite direction met within sixty feet of the starting point; that the appellee's horse was then traveling at a rapid pace, and when the driver of one of the horses so started, that he might avoid a collision with the horse going in the opposite direction, suddenly swayed his horse to one side of such other horse, but in doing so made it inevitable that the appellee's horse should collide with his horse and sulky; that the appellee's horse did collide with the horse and sulky so swayed from its course, causing the injuries complained of. It is alleged also that the appellee was without fault or negligence in said occurrence, and it was alleged that "by reason of dust and other obstructions, which he is not able to name or state, he did not see said horse and sulky going in the opposite direction, nor the turning or breaking" of the horse with which his horse so collided "until a few seconds before the collision occurred, nor until it was too late" and "was impossible to prevent a collision." In addition to these facts the first paragraph alleged that the appellant represented that said races would be conducted according to the rules of the National Association, which rules provided that all horses to participate in any race should be driven to the right of the starter's stand, turned and speeded rapidly in the opposite direction when started in a race, and that no horse should be allowed upon the track excepting those engaged in the race.

Each of the paragraphs is attacked by the appellant as disclosing (1) that the alleged collision was the result of contributory negligence; (2) that the appellant owed the appellee no duty on the occasion in question, and (3) that the injury was not the proximate result of the act of starting the horses in the manner alleged.

As we have seen, there is an express negative of contributory negligence, and this is not overcome by the allegation above quoted. That allegation, it is urged, discloses the same opportunity for the appellee to have seen the approaching horse as the appellant could have had to see it. If it was the duty of the appellant to use ordinary care for the safety of the appellee, that duty would require such assistants suitably situated, as might reasonably guard the track from intrusion. No corresponding duty rested upon the appellee. It is a matter of common knowledge that the agricultural associations of the state, where they conduct horse races, have starting stands, so constructed as to enable those in charge to see the entire track and observe the conduct of drivers and horses. It is a matter also of common knowledge that the track and its use are subject to the control of the associations and the starting and stopping of the races are subject to their direction. Contestants have no corresponding opportunities or privileges. When one enters such contests, by the...