Gifford v. Bogey Hills Golf & Country Club, Inc., 52951

• Decision Date: 08 April 1968
• Docket Number: No. 1,No. 52951,52951,1
• Citation: 426 S.W.2d 98
• Parties: Arthur GLFFORD, a Minor, by and through Marilyn Orlando, his Mother and Next Friend, Respondent, v. BOGEY HILLS GOLF AND COUNTRY CLUB, INC., a Corp., Appellant
• Court: Missouri Supreme Court

Page 98

426 S.W.2d 98

Arthur GLFFORD, a Minor, by and through Marilyn Orlando, his Mother and Next Friend, Respondent, v. BOGEY HILLS GOLF AND COUNTRY CLUB, INC., a Corp., Appellant.

No. 52951.

Supreme Court of Missouri, Division No. 1.

April 8, 1968.

Burton M. Greenberg, St. Louis, for respondent; London & Greenberg, St. Louis, of counsel.

Dalton & Zollmann, David A. Dalton, Wm. J. Zollmann, III, St. Charles, for appellant.

HIGGINS, Commissioner.

Action for $20,000 damages for personal injuries for negligently furnishing plaintiff a dangerous golf cart. Verdict and judgment were for defendant, but plaintiff received a new trial for errors in connection with Instruction 8 given at defendant's request.

Upon oral argument appellant conceded that the court committed error in giving Instruction 8 and thus waived and abandoned that portion of its brief, leaving only its contention that any such error was harmless because it should have had a directed verdict at the close of the evidence of the reason that 'the evidence failed (I) to prove any negligence on the part of defendant which was the proximate cause of plaintiff's injury,' and (II) 'to prove any knowledge, actual or constructive of the alleged defect prior to plaintiff's injury.'

On August 11, 1964, plaintiff, age 14, his stepfather, Joseph L. Orlando, and his stepfather's brothers, Willie and James Orlando, were at defendant Bogey Hills Golf and Country Club, Inc., for the purpose of playing golf on defendant's golf course. Joseph Orlando went to the pro shop and paid $22.00 for rental of two golf carts and registration fees for the foursome. When he came from the pro shop two golf carts had been parked there by defendant's employee, Michael Schwieghauser. No warning was given to plaintiff or the other members of the foursome of any defective brakes on either cart. Willie and James Orlando paired on one cart and plaintiff rode with his father driving the other, which was designated number 5 by defendant. Plaintiff's cart was a Laher electric golf cart, Number 6192MP, equipped with mechanical brakes. It had been used at another country club for three years prior to its purchase by defendant May 5, 1964. Although Orville Hahn, defendant's greenskeeper, said that he checked the brakes on number 5 and found them all right when it was purchased, and that he lubricated and inspected it as a regular procedure about every two weeks, defendant, in answer to an interrogatory, stated no 'maintenance, mechanical work, repair jobs or replacement of parts' had been performed by defendant on number 5 between the date of its acquisition and August 11, 1964.

It was Mr. Hahn's duty to maintain golf carts for defendant and they, including number 5, were in service five days a week; however, he had never adjusted the brakes on number 5, did not check its brakes August 11, 1964, and, upon driving number 5 when returned after the accident, admitted that its brakes 'could use an adjustment.'

Michael Schwieghauser was 14 or 15 years of age on August 11, 1964. He 'helped the pro in the pro shop and cleaned up and stuff like that.' As to golf carts he 'would just bring them down in the morning.' He drove number 5 from the shed to the point where it was delivered to Mr. Orlando. The brakes stopped the cart but he had no occasion to attempt an emergency-type stop. He knew of no check made of the brakes on that morning and he had never adjusted brakes on any of the carts. He was instructed to return carts to the shed if brakes were not working properly.

Joseph Orlando drove cart number 5 until the fifth hole of the first nine. During that time he found that the brakes would not lock the wheels of the cart and would only bring it to a 'rolling stop.' He had no occasion to make a hard or emergency application of the brakes.

Plaintiff requested permission from his father to operate the cart at the fifth hole. His father asked him to demonstrate his ability to operate the cart which he did to his father's satisfaction. Plaintiff had previous experience with tractors, power mowers and electric carts at amusement parks which were brake-accelerator operated like the golf car. Plaintiff began driving at the fifth hole and continued until the third hole of the second nine. During the play on that fairway one of plaintiff's uncles lost a golf ball at the bottom of a hill. Plaintiff remained seated on the cart while the others of the foursome looked for the ball. The cart was parked or stopped with the brake fully depressed when it started rolling downhill. Plaintiff removed his foot a bit and then pushed down on the brakes several times with no result. The cart did not stop and crashed through a barbed-wire fence at the bottom of the hill, causing plaintiff to be severely injured.

James Orlando returned cart number 5 to the clubhouse and, in the course of driving it, found there were no operative brakes. He applied the brakes at least three times and, on each occasion, the pedal went to the floor and the brakes gave no resistance. He called this to the attention of Orville Hahn. Mr. Hahn 'did go over and attempt to apply the brakes and I don't recall his statement but it was either that there was no brakes or the brakes were bad or the brakes were faulty, something like that.'

The brakes were not adjusted in any way following the accident and, on August 13, 1964, Joseph O'Toole, Jr., an investigator for plaintiff, drove the cart and determined that the pedal 'went possibly within an inch of the floor,' and at no time while he was operating the cart did the brakes lock the wheels or completely stop the cart.

On August 19, 1964, Otto Swyers, Jr., of Auto Damage Appraisers, employed by defendant, tested the brakes on the cart and found 'they may have needed an adjustment.' He found the cart to have some brake pedal and he skidded its wheels on an asphalt surface.

On August 18 or 19, 1964, Orville Hahn brought the cart to a stop on the hill where plaintiff's accident occurred.

Edward Bilhorn, a consulting engineer, was called as an expert witness by plaintiff. He stated the braking mechanism on the cart in question to be readily accessible for inspection, and that inspection is a simple procedure requiring about two minutes to perform. The function of the mechanical brakes is to lock the wheels of the cart. In answer to a hypothetical question, he stated his opinion that within reasonable engineering certainty the brakes on the cart were improperly adjusted and that this defect had existed for several weeks and could have been determined by an inspection.

Plaintiff made his case on the most favorable view of this evidence, and it was for the jury to say whether the golf cart furnished plaintiff by defendant had inadequate brakes which rendered the cart dangerous; whether defendant knew, or in the exercise of ordinary care should have known, of such dangerous condition; whether plaintiff did not know, in the exercise of ordinary care, of the dangerous condition; whether defendant failed to warn of such condition; whether defendant was thereby negligent and plaintiff thereby injured and damaged, all as submitted by Instruction 3 (MAI 26.01).

Spelky v. Kissel-Skiles Co., Mo.App., 54 S.W.2d 761, is close in point to plaintiff's case. Plaintiff charged that defendant leased an automobile to one Hoffman and that while riding with Hoffman she was injured as a result of defendant's negligence in furnishing an automobile with defective brakes and a defective accelerator which would stick and...