Nicholas v. Tri-State Fair & Sales Ass'n

• Decision Date: 31 January 1967
• Docket Number: TRI--STATE,No. 10308,10308
• Citation: 82 S.D. 450,148 N.W.2d 183
• Court: South Dakota Supreme Court
• Parties: John NICHOLAS, Plaintiff and Respondent, v.FAIR & SALES ASSOCIATION and Black Hills Round-Up, Defendants and Appellants.

Page 183

148 N.W.2d 183

82 S.D. 450

John NICHOLAS, Plaintiff and Respondent, v. TRI--STATE FAIR & SALES ASSOCIATION and Black Hills Round-Up, Defendants and Appellants.

No. 10308.

Supreme Court of South Dakota.

Jan. 31, 1967.

Smiley & Anderson, Belle Fourche, for Defendants and appellants.

Stephens & Brandenburg, Belle Fourche, for plaintiff and respondent.

HOMEYER, Presiding Judge.

Plaintiff brought this suit to recover for personal injuries sustained when he was struck and knocked down by a horse while attending the Black Hills Roundup at Belle Fourche, South Dakota, on July 4, 1963. A jury rendered its verdict in his favor and the defendant appeals from the judgment entered thereon.

Defendant's principal contention is that the evidence is insufficient to sustain the judgment. Specifically, it maintains there is no substantial credible evidence to establish that defendant was negligent. Precedents need not be cited for the familiar rule that it is our duty to view the evidence in a light most favorable to the prevailing party and the elementary premise that all conflicts in the testimony are deemed to have been resolved in his favor.

Defendant is a corporation which each year conducts the rodeo at Belle Fourche. The rodeo grounds are located on the outskirts of the city and a general description is necessary to fix the setting and circumstances surrounding the accident.

The show is staged in an arena which is part of the inner area of a circular race track which is also used in the rodeo. The arena is oblong shaped and was estimated at its widest points to measure about 500 feet from east to west and 300 feet from north to south. South of the arena is a large grandstand with bleachers on each side. This seating area is screened from the race track by heavy meshed wire. A board fence from six to seven feet high surrounds the arena except for the part in front of the grandstand and bleachers and for a segment to the north. In such segment opposite the grandstand is another set of small bleachers, a band shell, two gates, eight bucking chutes from which animals and their riders are released into the arena, a radio booth, and some roping chutes. A 'crow's nest' for the rodeo announcer and other officials is centered above the bucking chutes. North of the arena, but still within the inner circle of the race track, is a sector used for feeding livestock employed in the rodeo; for exercising and practicing by contestants; for parking vehicles of participants; and corrals and chutes for livestock. These corrals and chutes extend northward from the bucking chutes to the inside perimeter of the race track. Swinging gates are a part of the construction of the corrals and chutes and when opened form a passageway from the west part of the area north of the arena to the east part thereof. When closed free access from one part to the other is prevented. Parking space for cars of spectators is provided on the rodeo grounds.

Plaintiff, then 26 years old, had never attended a rodeo before. He and his two companions, Ray Winter and Richard Dawe, parked their automobile in a parking area on the west side of the rodeo grounds, paid an admission fee at a temporary ticket booth on the west side, crossed the race track and entered the area north of the arena. Other spectators were doing the same thing and the show had just begun. A large crowd was in attendance and the grandstand and bleachers on the south side appeared to be filled.

Dawe and plaintiff attempted to find seats in the bleachers on the north side, but this was filled as well as the arena fence in that area. People were watching the show by sitting on the fence and also by standing on the ground looking through openings in the fence. The three young men then went through an alley formey by the opened corral gates and found seats on top of the arena fence east of the bucking chutes. Other spectators were similarly perched in the same area. Plaintiff and Dawe watched virtually the entire performance while seated on such fence. Winter spent most of his time in the arena taking pictures.

The final event on the program was a wild horse race. It appears that one of the horses which was to be used in the race broke away as it was being moved through the arena to the track in front of the grandstand where it was to be saddled and mounted and ran to the west side of the arena. It was replaced by another horse for the race.

The wild horse race had been completed and the rodeo announcer had said that this concluded the show. Plaintiff had remained seated on the arena fence during the race, but his two companions and many others had descended into the arena to watch the race. After the race and the announcement of the completion of the show plaintiff left his seat on the fence and joined his companions and the three of them started across the arena in a west to northwesterly direction towards where their car was parked. There was evidence that the corral alley in the area north of the arena was closed.

Plaintiff testified that he was walking in the middle of the threesome; that no one was directing them or attempting to control their path of exit; that he saw no horse or other livestock in the arena at the time; that just before he was knocked down he saw one of his companions wave a hat.

Winter and Dawe in essence corroborated plaintiff, except they said they saw the horse running towards them coming from the west; that they waved their hats and yelled; that the horse narrowly missed Dawe and struck and knocked down plaintiff as it passed.

The evidence establishes that plaintiff was an invitee upon the premises of the defendant and it thus became defendant's...