Kuemmel v. Vradenburg

• Decision Date: 18 April 1951
• Docket Number: No. 12215,12215
• Citation: 239 S.W.2d 869
• Parties: KUEMMEL v. VRADENBURG.
• Court: Texas Court of Appeals

Page 869

239 S.W.2d 869

KUEMMEL v. VRADENBURG.

No. 12215.

Court of Civil Appeals of Texas, San Antonio.

April 18, 1951.

Concurring Opinion May 23, 1951.

Rehearing Denied May 23, 1951.

W. Pat Camp, Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellant.

Dibrell, Gardner & Dotson, Jas. F. Gardner, Clinton G. Brown, Jr., Brewer, Matthews, Nowlin & MacFarlane, San Antonio, for appellee.

POPE, Justice.

This is an appeal from a judgment on a jury verdict convicting defendant of negligence arising out of a head injury proximately cause by a 'hot-rod' racing car which ran into the minor plaintiff, who was a spectator at a car race.

The appeal concerns the following points:

(1) Was there any evidence and sufficient evidence to support the jury finding that the defendant was negligent in failing to maintain a barrier of reasonably sufficient strength to protect the spectators?

(2) Did the trial court err in sustaining an exception to defendant's answer and in refusing to submit an issue presenting the parents' negligence as the sole proximate cause? The answer alleged the parents' negligence in failing to supervise the child and in permitting him to go to a place of danger.

(3) Did the evidence support a damage issue which permitted recovery for future physical pain and mental anguish?

(4) Was the sum of $12,000 excessive?

We have examined the other points urged by appellant but find they are without merit.

On Easter Sunday, 1949, Mr. and Mrs. Vradenburg took their three-year-old son, Gregory, to Shadowland Race Track in Bexar County, where both an Easter Egg Hunt and 'hot-rod' races occurred. A 'hot-rod' was described as an automobile which had been assembled from a wide assortment of parts from different automobiles. The Vradenburgs paid their admission charge and entered the grandstand to watch the races. By stipulation and the evidence the defendant had control over and was proprietor of Shadowland under a rental agreement. At the intermission the child engaged in the Easter Egg Hunt, and afterwards, while the races were again in progress, the parents and the child left the grandstand and stood among other spectators alongside the track. One of the racing cars then left the track and struck the minor plaintiff who was on the spectator side of a protecting barrier made of two cables and cedar posts. This suit was brought by the minor only, and he recovered $12,000 on a jury verdict.

Appellant has briefed the case on the theory that the trial court has held the defendant negligent per se. On the contrary, supported by the evidence, there was a jury finding that the defendant was negligent in failing to maintain a barrier of reasonably sufficient strength. Defendant undertook to show that by maintaining the class of fence customarily used he had discharged his duty. Much of the evidence centered upon the inquiry whether he customary fence had been maintained, which the jury decided against the defendant. Defendant lost the case on the proof, facts and finding of negligence, rather than by reason of negligence per se.

The duty toward invited spectators of amusements may vary with the particular sport, but in the instance of an automobile race, the rule is summarized in 1 Blashfield, Cyclopedia of Automobile and Practice, § 763, as follows:

'The proprietor or promoter of an automobile race held as an amusement enterprise owes the duty of ordinary care to protect spectators lawfully present from injury.

'What shall constitute the proper degree of care depends upon the circumstances surrounding the particular race.

'For example, at a race held upon a state fair race track, which was circular in form, where spectators on the sides of the track were protected only by a flimsy wooden fence, and the speed of the machines tended to make them leave the track, it has been held to be negligence to permit the cars to be driven in excess of a mile a minute.

'However, a person or association maintaining premises on which automobile races are conducted as an amusement enterprise, or as an attraction at a state fair or the like, owes to invitees the duty to exercise ordinary care to see that the premises are reasonably safe. This obligation continues despite the fact that an independent contractor is employed to produce the races.

'A fair association or the like may therefore be found to be negligent in failing to provide suitable barriers or safety zones to prevent spectators from coming in dangerous proximity to the race track, especially where there are spectators who cannot be accommodated in the grandstand.'

Arnold v. State, 163 App.Div. 253, 148 N.Y.S. 479, 483, states the rule to be that:

'Reasonable care required special construction to provide for the safety of those invited by the state to a place of public entertainment provided by itself. * * *

'If a race cannot be held without inherent and extreme risk to life and limb, the command of the law is that it must not be held at all.

'The greatest and most obvious source of danger from a nonprotected track was not guarded against except by a flimsy fence, which could not resist a powerful car, with tremendous momentum, in case it left the track, which the commissioners knew, or should have known was liable and even likely to happen. * * *

'I hold the state liable for holding or permitting to be held on its own ground, under the circumstances disclosed by the evidence, such a fast race, with powerful cars, on an unprotected track, without the exercise of reasonable care to provide against accidents well known to be likely to happen.'

Accord, Virginia State Fair Association v. Burton, 182 Va. 365, 28 S.E.2d 716, 61 C.J.S., Motor Vehicles, § 577.

The charge substantially applied the above standard of duty toward invitees and the finding that the barrier was not of reasonably sufficient strength to protect the spectators was supported by the evidence. The appellee child with his parents, upon arrival at Shadowland, at first went to the grandstand. While the last race was in progress they left the grandstand in order to avoid the crowd. The child walked a few feet ahead of his parents and they all stopped near the barrier to watch the races. They stood among other spectators and never got beyond the spectator side of the protecting barrier. The testimony varied, but one witness stated that the child's hands were touching the barrier. The other testimony placed the child away from the barrier. During the races, warnings were given the spectators to stay away from the barrier, but spectators did not move from the barrier as the races proceeded. The child never ceased to be an invitee to whom the duty was owed. Automobiles belonging to spectators were parked alongside the barrier. One of the speeding 'hot-rods' left the oval shaped racing track and proceeded approximately twenty or twenty-five feet across the space between the track and the barrier, struck the barrier, collided with the automobiles parked on the spectator side of the fence, and hit the appellee causing severe head injuries.

The proof in this case shows that of the three classes of protective barriers customarily used at such racing tracks, the post and cable fence is considered the best and that such a fence was in use at Shadowland when the accident occurred.

Whether we agree with the jury is not the issue before us. Whether there was evidence to support the jury's finding of negligence in failing to provide a barrier of reasonably sufficient strength to protect the spectators is the issue. Appellant, Kuemmel, testified that the purpose of the barrier was to protect both the spectators and also the 'hot-rod' drivers by pushing a vehicle back on the track. Four other qualified witnesses testified that the purpose of the barrier was to deflect the car so it would not come through the fence into the spectators. An expert who had been on 150 different 'hot-rod' tracks the year prior to the accident stated that the customary size cable used in the construction of the barrier was 'three-quarter inch up to one and a quarter inch' cable. He also stated that a five-eighths inch cable was one-eighth inch smaller than usual. These facts tend to show the size of cable customarily required by the 'hot-rod' racing fraternity to protect spectators. The car instead of being stopped or deflected on contact with the barrier, according to some of the witnesses, sheared the posts, broke a cable, and came on through the cables and beyond the fence into the crowd. Appellant himself said the cable was only five-eighths inch cable, which was below that customary standard set by the expert called as his witness. Another witness said that it was less than half-inch cable, and the child's father said it was 'about the size of my little finger.' Another witness estimated the cable to be three-eighths inch cable. Ample evidence existed to show that the barrier fell below the customary standards.

Moreover, all the evidence shows that the barrier had two strands of cable anchored to posts set in concrete. One witness stated the top strand was chest high and the bottom strand was ankle high and sagging. Another witness said the top strand was shoulder high and the other was six inches from the ground. Still another witness said the top strand was chest high and the bottom strand was three feet off the ground. Another witness said the top cable was four feet from the ground and the bottom cable was sixteen or eighteen inches from the ground. Another witness said the top cable was thirty-six inches high and the bottom one was twenty-four inches. Still another said the top cable was fifty inches and the other was eighteen inches from the ground. Other witnesses expressed different views. Photographs of the fence at the place of the accident showed that the arrangement of the cables was visible and apparent.

The arrangement and condition of this fence was a matter for the jury to pass upon in answering the...