Klause v. Nebraska State Bd. of Agriculture

• Decision Date: 03 December 1948
• Docket Number: 32459.
• Citation: 35 N.W.2d 104,150 Neb. 466
• Parties: KLAUSE v. NEBRASKA STATE BOARD OF AGRICULTURE.
• Court: Nebraska Supreme Court

35 N.W.2d 104

150 Neb. 466

KLAUSE v. NEBRASKA STATE BOARD OF AGRICULTURE.

No. 32459.

Supreme Court of Nebraska

December 3, 1948

Syllabus by the Court.

1. An exception to a group of instructions collectively in a motion for new trial shall be deemed for the purposes of review in this court separately an exception to each instruction included within the group, and the contra rule of the earlier decisions is abrogated.

2. In an action for damages where there is no evidence upon which to base a finding of contributory negligence on the part of a plaintiff it is error for the court to instruct the jury on that subject.

3. A spectator at a wrestling event is required to exercise due care in protecting himself against known dangers or such as should be known and appreciated by a reasonable person in the exercise of due care.

4. A spectator at a wrestling event assumes the risk only of such dangers as are incident to such events of which he has knowledge or which are or should be obvious and apparent to him as a reasonable person under the circumstances in the light of his information and knowledge.

5. A master may be held liable for the act of a servant if the act concerning which complaint is made was performed or done with a view to the service for which the servant was employed.

6. Conversely a master may not be held liable for the act of a servant if the act was not done or performed with a view to the service for which the servant was employed.

7. One who operates a place of public amusement or entertainment is held to a stricter accountability for unjuries to patrons than owners of private premises generally; he is not the insurer of the safety of patrons, but owes to them only what under the circumstances, amounts to ordinary and reasonable care.

8. A motion for new trial not filed in conformity with section 25-1143, R.S.Supp.1947, as to time may not be considered by this court on review.

William L. Walker, Leonard Dunker and Earl Ludlam, all of Lincoln for appellant.

Max Kier, of Lincoln, and Joseph H. McGroarty, of Omaha, for appellee.

Heard before PANIE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

YEAGER Justice.

This is an action for damages by Robert G. Klause, plaintiff, appellant here, against Nebraska State Board of Agriculture, a corporation, Joseph Dusek, William Kuusisto, Adam Krieger and Max Clayton, defendants, appellees here. Elmer Snodgrass and Charles Moon were named defendants in the petition filed in the district court but they are not parties to this appeal.

The case was tried to a jury. At the conclusion of the evidence the defendants separately moved for dismissal of the action on the ground that no cause of action had been proved against them. The motion of the defendant Clayton was sustained. The other motions were overruled whereupon under instructions of the court the case was submitted to the jury for determination. On November 17, 1947, the jury returned a verdict against the plaintiff and in favor of all defendants whose motions for dismissal were overruled.

On November 19, 1947, plaintiff filed a motion for new trial as to all defendants except Max Clayton.

On November 26, 1947, plaintiff filed a motion for judgment notwithstanding the verdict, or for a new trial. The defendant Clayton was not mentioned in this motion.

On January 10, 1948, plaintiff filed an amendment to his motion for judgment notwithstanding the verdict or for new trial. No new matter is included in this amendment except an allegation that the court erred in directing a verdict in favor of the defendant Clayton. This amendment was not predicated on newly discovered evidence.

The various motions were overruled by the court. From the judgment in favor of defendants and the order overruling the various motions the plaintiff has appealed.

The assignments of error set out in the brief are substantially (1) that the verdict is against the clear weight of the evidence, (2) that the court erred in instruction No. 21 in submitting to the jury the question of contributory negligence on the part of plaintiff, (3) that the court erred in instruction No. 21 in submitting the question of comparative negligence, (4) that the court erred in instructing the jury in instruction No. 18 that the Fair Board (Nebraska State Board of Agriculture) and Adam Krieger could not be held liabe for acts of defendants Dusek and Kuusisto while wrestling outside the ring, (5) that the court erred in instruction No. 15 in telling the jury that the Fair Board (Nebraska State Board of Agriculture) and Adam Krieger were not insurers and for failure to define their duty to plaintiff, (6) that the court erred in instructing in instruction No. 14 that the defendant Dusek in assaulting plaintiff outside the ring was without the scope of his employment, (7) that the court erred in submitting in instructions Nos. 16 and 17 the issue of assumption of risk, and (8) that the court erred in directing a verdict in favor of Max Clayton.

The factual situation upon which the determination herein depends is substantially the following: On and prior to January 28, 1943, the Nebraska State Board of Agriculture, also known as the Fair Board, had a license to conduct wrestling matches in the 4-H building at the Nebraska State Fair Grounds at Lincoln, Nebraska. Adam Krieger was matchmaker for the Fair Board. Events were open to the public on tickets of admission. In the building is a square wrestling stand, or ring as it is commonly called. The platform is elevated about four feet above the ground. At the four corners of the platform are metal posts or uprights. Secured to these posts and surrounding the ring are ropes or cables. The purpose of the ropes or cables is to define the ring and to contain or confine therein the contestants. Outside and surrounding the platform and probably starting four to six feet away and extending backward are arranged seats for spectators.

On January 28, 1943, a card of wrestling events was being conducted at this place by the Fair Board. Adam Kriegar was the promoter and matchmaker and was in active charge. The defendants Dusek and Kuusisto were the participants in one of the events. The defendant Dusek had been booked or procured through the defendant Max Clayton. Plaintiff was a spectator occupying a front seat on the west side of the ring. One Elmer Snodgrass was referee for the event.

During the event the refree was outside the ring and in some manner came into contact with plaintiff who was sitting in his seat. The cause of the contact is in dispute. In consequence plaintiff's nose was broken. For the injury sustained and the consequential damages plaintiff contends that the defendants and each of them are liable.

The evidence on the part of plaintiff as to the manner in which he was injured is that Dusek threw or pushed the referee outside the ring and down onto the ground, then threw Kuusisto out, then got out himself, and started wrestling with Kuusisto outside the ring whereupon the referee attempted to separate them and in the melee was thrown back into the plaintiff.

There is some difference in the evidence of defendants as to what happened but in no important particular insofar as the issues involved are concerned. Their witnesses were in accord that the referee came into contact with plaintiff and the defendants do not contend that plaintiff was not injured as claimed by the contact. Certain of those who testified in relation to the subject said that the occurrence came about substantially as follows: The contestants were in the ring with Dusek standing against the ropes on the west side and Kuusisto on the east side. The referee was out of the ring on the west side. He was returning to the ring directly back of Dusek. Kuusisto made a flying tackle or leap toward Dusek. Dusek sidestepped and Kuusisto missed him and struck the referee and knocked him backward into the lap of plaintiff. Certain other witnesses for the defendants say and indicate that the contestants were out of the ring previously but their testimony does not connect that fact with the incident resulting in the injury to plaintiff. Factually therefore according to the evidence of plaintiff the activation which resulted in his injury was participated in by the two contestants and the referee whereas according to the evidence of defendants it was activated solely by the defendnat Kuusisto.

The defendants in the answers on which the case was submitted to the jury set up as defenses that the plaintiff assumed the risk of such dangers as caused the injury which he sustained by placing himself in the seat which he occupied and that therefore he was not entitled to recover, also that in the choice of his seat he was guilty of negligence which proximately caused or contributed to his injury sufficient to defeat a recovery.

The district court instructed on both assumed risk and contributory negligence and as pointed out by the assignments plaintiff urges this as error.

The defendants assert that these assignments are not available to plaintiff since they were not properly assigned as error in the motion for new trial. They assert, and it is a fact, that the instructions of the court with reference to contributory negligence and assumed risk are contained within certain instructions from 1 to 24 inclusive. They assert also, and this is likewise a fact, that the motion for new trial fails to attack the instructions 1 to 24 or any of them separately and independently but only as a whole and in the entirety. They therefore contend that these assignments may not be considered here since it is a rule of this court that an assignment of error in a motion for a new trial to the effect that the trial court erred in giving a group...