OPINION
Morris, J.
Complaint
by appellee for damages, for negligently causing death,
against the appellants, National Motor Vehicle Company and
Indianapolis Motor Speedway Company, corporations. For
convenience, appellants are hereinafter designated as vehicle
company and speedway company, respectively. Each
appellant's demurrer to the complaint was overruled.
There was a trial by jury, with certain facts specially
found, and a general verdict for appellee, in the sum of $
7,000. Each appellant's motion for a new trial, and for
judgment on the jury's answers to interrogatories, was
overruled, and judgment was rendered on the general verdict.
The complaint alleges, in substance, that on, and previous to
August 21, 1909, vehicle company, was engaged, in
Indianapolis, in the manufacture and sale of automobiles, and
had theretofore employed Claude Kellum, decedent, age 34, to test and repair automobiles manufactured and
sold by it; that previous to August, 1909, speedway company
organized to conduct automobile speed contests, and for other
germane objects; that pursuant to such purposes, it purchased
ground in Marion County and constructed thereon a race track
or speedway, which was enclosed with tight board fences so as
to enable it to charge admission fees for spectators of
proposed automobile speed contests, or races; that previous
to August, 1909, it advertised races at the speedway to
continue from August 16, to August 21, 1909, and in such
advertisement represented to the public and contestants that
the track was in excellent condition and suitable for speed
contests; that prior to August 16, 1909, decedent Kellum read
the advertisements, and relied on the truth of the
representations therein; that on Monday, August 16, 1909,
Kellum was at Youngstown, Ohio, engaged there in the duties
of his said employment, and received from vehicle company a
telegraph message as follows: "Be in Indianapolis
Wednesday morning early without fail"; that in obedience
to the message, Kellum arrived in Indianapolis Wednesday
morning, August 18, and reported to vehicle company; that at
that time, the advertised races were in progress; that
vehicle company was then a participant in the races, and had
several automobiles entered in the contests, and that various
like manufacturers were participating; that the contests were
of speed, and durability of machines, which were heavy and
driven at great speed; that at that time, few such races had
been held, and Kellum was not familiar with the method of
conducting them. The averments of negligence are as follows:
"That the said race track or speedway so provided by
said defendant, Indianapolis Motor Speedway Company, was
negligently, carelessly and unskilfully
constructed by it, in that it was constructed of materials
not suitable or sufficient to bear thereon the rapid travel
of heavy automobiles and motor cars; that during said
contests on the 19th and 20th days of August, 1909, the said
race track and speedway by reason of the races aforesaid, had
become defective and uneven, with many holes therein, and
dangerous, and that said Indianapolis Motor Speedway Company
on the 21st day of August, 1909, did negligently and
carelessly suffer and permit said race track and speedway to
continue to remain in said defective and dangerous condition.
That such defective and dangerous condition of said race
track and speedway was known to both of said defendants, but
was not at any time known to plaintiff's said decedent.
That on Saturday, August 21, 1909, the said contests and
races were still in progress; that a crowd of spectators
numbering over 30,000 people was in attendance and that the
excitement and interest of all the officers of defendant
corporations and of the said spectators were intense. That on
the afternoon of said day, after one or more contests had
been finished, another race between said competing
automobiles and motor cars was in progress; that on each of
said racing vehicles there was a driver and mechanician. That
the defendant National Motor Vehicle Company had caused
one of its automobiles or motor cars to be entered in said
race, and that said vehicle carried in said race two of the
employes of said last named defendant as driver and
mechanician respectively. That the services of such driver
and mechanician were necessary in conducting said vehicle
through said race; that after said race had commenced and
said last named vehicle had proceeded therein for some
distance, the mechanician thereon fainted, and became
disabled, and it was necessary that said
defendant National Motor Vehicle Company should immediately
procure the services of some person to take the place of the
said mechanician who had become disabled; that said last
named defendant, by its officer thereunto duly authorized,
whose commands plaintiff's decedent was bound to obey,
ordered plaintiff's decedent to enter said automobile or
motor car, and perform the duties of said mechanician during
said race; that plaintiff's decedent in obedience to said
orders, entered said vehicle, and that said vehicle again
started in said race, at a high rate of speed, being guided
by the said driver, who was then and there the agent and
servant of said last named defendant, and that while said
vehicle was so being propelled on and around said race track
and speedway at such high and dangerous rate of speed, the
same ran into and against an uneven, defective and dangerous
place therein, so carelessly and negligently allowed and
permitted therein as aforesaid, by said Indianapolis Motor
Speedway Company, and that said rough, uneven, defective and
dangerous place in said track or speedway, caused the rubber
tire on said vehicle to burst and the said vehicle to lurch
and turn, so that plaintiff's decedent was violently
thrown therefrom to the ground and instantly killed. That at
all times herein mentioned, plaintiff's decedent was
acting with due care and without any negligence. And
plaintiff further says, that the said vehicle in which
plaintiff's decedent was so riding, at the time of his
death, had been so theretofore used, that the tires thereon
were worn, weak, and defective, which fact was known to the
defendant National Motor Vehicle Company at all times on said
21st day of August, 1909, but was not known then or at any
time by plaintiff's decedent. That the tires on said
automobile or motor car should have been changed and replaced with sound and unworn tires before entering
said vehicle in said race, and that if said tires had been so
replaced, and had not been weak and defective as aforesaid,
plaintiff's decedent would not have been thrown from said
vehicle and killed. And plaintiff further avers that if
said race track and speedway had been skillfully and
carefully constructed and had been maintained in good
condition by the defendant Indianapolis Motor Speedway
Company with reasonably even surface, the said defective
tires of said vehicle in which plaintiff's decedent was
riding as aforesaid, would not have burst and said decedent
would not have been killed. (Italics ours.) That both of
said defendants had knowledge of all the facts hereinbefore
recited as to the defective and worn condition of said track
and speedway, and of the defective and worn condition of the
tires on said vehicle, or by the exercise of reasonable
diligence might have known of the same, but that the
plaintiff's decedent did not have such knowledge as to
any defects either in said track or in said vehicle in which
he was so riding. That both of said defendants knew and
appreciated the dangers of riding in automobiles or motor
cars on a track or speedway such as was maintained as
aforesaid, but that plaintiff's decedent was not
accustomed to such racing, did not have information as to the
true condition of either the said track or the said vehicle,
and did not and could not appreciate the dangers aforesaid.
And plaintiff says that the death of the said Claude S.
Kellum was directly and proximately, negligently and
carelessly caused by the acts of negligence of said
defendants as hereinbefore charged."
It is
claimed by speedway company that its demurrer to the
complaint should have been sustained because contributory
negligence is affirmatively shown. While it is
true that, notwithstanding our statute which casts on the
defendant the burden of proving contributory negligence, a
complaint may so aver such negligence as to render it subject
to demurrer, this result follows only where the facts averred
are not subject to any inference other than that of
contributory negligence. Greenawaldt v. Lake
Shore, etc., R. Co. (1905), 165 Ind. 219, 233, 74 N.E.
1081. The complaint does not show contributory negligence.
It is
urged by each appellant that the court erred in overruling
the motions for judgment on the jury's answers to
interrogatories. By these answers the jury finds that there
was no defect in the tires. It is appellant's theory that
the complaint charges an injury caused by two dependent and
combined acts, and, the jury having found against appellee on
one of the dependent acts, appellants were entitled to
judgment. Terre Haute, etc., R. Co. v
McCorkle (1895), 140...
