Kelley v. Sportsmen's Speedway

• Decision Date: 13 June 1955
• Docket Number: No. 39526,39526
• Citation: 224 Miss. 632,80 So.2d 785
• Parties: Esom J. KELLEY, Administrator of the Estate of Franklin D. Kelley, Deceased, v. SPORTSMEN'S SPEEDWAY, Inc., et al.
• Court: Mississippi Supreme Court

Page 785

80 So.2d 785

224 Miss. 632

Esom J. KELLEY, Administrator of the Estate of Franklin D Kelley, Deceased, v. SPORTSMEN'S SPEEDWAY, Inc., et al.

No. 39526.

Supreme Court of Mississippi.

June 13, 1955.

Sams & Jolly, Columbus, for appellant.

Sims & Sims, Columbus, for appellees.

KYLE, Justice.

This case is before us on appeal by Esom J. Kelley, administrator of the estate of Franklin D. Kelley, deceased, plaintiff in the court below, from a judgment of the Circuit Court of Lowndes County, in favor of Sportsmen's Speedway, Incorporated, and others, defendants in the court below, in an action for damages for the wrongful death of Franklin D. Kelley, deceased.

The record shows that the Sportsmen's Speedway race track was located about 100 yards south of U. S. Highway No. 82, six miles east of the City of Columbus. The race track grounds were enclosed by a wood-paling fence, 8 to 12 feet high. The track itself was a dirt-surfaced circular tract a quarter of a mile in length. There were two gates leading into the race tract grounds. West of the entrance, between the fence and the race track proper, there was an area called the 'pit', where the stock cars which were to be entered in the races were assembled and made ready for the races. The race track proper was out in front of the pit and was elevated 2 1/2 or 3 feet above the level of the pit. On the right, as spectators entered the enclosure, there was a grandstand, north of the race track, next to the highway. The grandstand was approximately 150 feet from the gate; and in front of the grandstand, where the spectators sat, there was a heavy barricade fence, built out of 2 X 10 and 2 X 12 timbers fastened to crosstie posts, approximately 12 feet high, with chicken wire strung between them. There was a light fence made out of 1 X 4 oak timbers painted white around the track in front of the pit, which marked the outside edge of the tract. The fence was 3 feet high, and was not strong enough to stop a car or a wheel that ran off a car.

Stock cars that were entered in the races were old model vehicles braced up and reinforced on the inside, with the motors reworked and the power stepped up. Such cars were equipped with bracket type seats firmly fastened to the frames and bolted to the inside of the car. The seats were equipped with safety belts, and the drivers wore crash helmets. The pit was the place where the stock cars were kept while they were not actually engaged in a race. According to the rules of the corporation, no one was allowed in the pit without signing a release, and pit passes were issued to persons entitled to be admitted. Only drivers, owners and mechanics were expected to enter the pit, and the number of persons to be admitted with each car was limited to three.

Franklin D. Kelley was fatally injured during a Sportsmen's Speedway racing exhibition at the race track on the night of April 26, 1952, when he was struck by a flying wheel which had broken off of a 1934 model Ford stock car driven by Clarence Riley. Kelley died as a result of his injuries a few minutes later. At the time of his injury Kelley was standing in the pit area of the race track grounds about 25 or 30 feet from the track. The wheel came off the car as the car rounded the curve in front of the pit, and the car turned over. The driver of the car testified that he had examined the car before the races started, and there were no visible defects in the car. He had driven five or six laps around the track when the wheel came off. The car was examined after the wreck, and it was found that the hub of the right front wheel was broken and the break in the hub was a fresh break.

The declaration in this case was filed by Esom J. Kelley, administrator, against the defendant corporation and the stockholders and managers in charge of its affairs, for the benefit of the father and mother, the sister and the two brothers of the deceased. The individual defendants, who were sued along with the corporation, were A. B. Green, W. V. Holley, R. R. Beaty, S. H. Oglesby, who is referred to in the record as Jack Oglesby, and Clifton S. Wade. In his declaration the plaintiff alleged that the deceased was employed by the defendants as a messenger boy at the time of his injury, and that immediately prior to his injury he was ordered and directed by Clifton S. Wade, one of the active managers of the race track, to go into the pit area where the automobiles were assembled prior to their entry into the races, and deliver a message to some person in the pit, and that while he was in or near the pit he was fatally injured by the wheel that came off the racing car. The plaintiff alleged that Kelley's death was caused by the defendants' negligence in failing to ascertain the faulty condition of the automobile from which the wheel escaped, and in failing to have proper safeguards erected around the race track to protect persons in or about the pit area from injury, and in failing to furnish the deceased with a safe place to work.

The defendants in their answer denied that the deceased was employed to work at the race track during the racing exhibition or that he was on duty as an employee of the defendants at the time of his injury. The defendants denied that it was their duty to place a fence or enclosure around the area outside the race track referred to as the pit, or that that were negligent in failing to inspect the automobiles engaged in the races prior to their entry into the races, or that they were negligent in any manner in operating the race track, or that they had failed to furnish any of their employees a safe place to work. The defendants admitted in their answer that there was no fence around the pit; but the defendants averred that it was not the practice of race track owners and operators to put fences around the pit area, that spectators had no right to be in or around the pit; and that the deceased was a spectator. The defendants averred in their answer that there was a very strong fence around and in front of the grandstand; that spectators were warned to stay away from the pit; and that the deceased had been told by Clifton S. Wade, one of the managers, only a few minutes before he was injured, that he was not wanted to deliver any messages, and that he should get in the grandstand and get him a seat before the next race started; and that the defendants were not in any way responsible for the injury and death of the deceased.

Clifton S. Wade was called to testify as an adverse witness for the plaintiff. After describing the layout of the race track grounds, Wade testified that Oglesby was in charge of the pit during the night the accident occurred. Wade himself was stationed in the center of the circle inside the tract. Holley and Green handled the messages that had to be sent to Oglesby as the judges made their announcements concerning the cars that were to be entered in the next race. Wade stated that Franklin Kelley had been employed, along with the other school boys, during the day to help in getting the track ready for use; but the stockholders had adopted a rule that no minors should be permitted to work at night, and Wade had told the boys that none of them would be used that night. Wade stated that he had seen Franklin Kelley in the center of the track circle 15 or 20 minutes before the accident occurred, and that he had told him to go behind the fence and stay away from the track. Wade stated that he had sent no messages of any kind by Franklin Kelley during the night.

Robert Ashcraft and Sam Ashcraft, who had attended the New Hope School with Franklin Kelley, testified as witnesses for the plaintiff. Robert testified that he was in the pit selling soft drinks and was standing right behind Franklin Kelley when the car wheel struck him. He did not think Franklin ever knew what hit him. Mr. Oglesby was standing close by. They were 25 or 30 feet from the race track. On cross-examination Robert stated that the managers had a loudspeaker on the grounds and he heard them warn the spectators to stay out of the pit. Sam Ashcraft testified that he too was in the pit at the time the wheel struck Franklin Kelley. He was just a spectator. He stated that the wheel that struck Franklin Kelley struck him also and went on through the fence. Sam stated that he had worked for the Sportsmen's Speedway during the day, but was not working that night. The managers had told him that they did not want him and the other boys to work at night, but, he added, no one had told him to leave the pit. Sam and Robert both testified that there was a double fence in front of the grandstand to protect the spectators, but that fence did not protect the pit area.

Jerry Kelley, Franklin's brother, was the only witness who testified positively that Franklin was working for the Sportsmen's Speedway when the accident occurred. Jerry testified that Franklin was carrying messages from Mr. Wade to the pit; and Jerry stated that he also was helping but was not being paid for his services. Esom J. Kelley, the plaintiff, and Mrs. Edra Ann Kelley, Franklin's mother, and Peggy Ann Kelley testified that Mr. Wade stated to Mrs. Kelley when they called to see him at his home the day after Franklin was killed, that he felt responsible for Franklin's death because he had sent Franklin into the pit with a message. Wade was recalled later and testified that he had not made such statement to Mrs. Kelley.

Jack Oglesby, the pit manager, testified that the flying wheel that struck Franklin Kelley struck him also on the arm. He stated that he had not seen Franklin Kelley in the pit prior to the time he was hit. Franklin Kelley had brought him no messages at any time during the night. Oglesby was asked whether Franklin Kelley had a pit pass. His answer was, 'No, sir, if he did, I didn't see it while we were putting him in the ambulance.' Oglesby and G. C. Hughes both testified that they were present at Mr....