Priebe v. Kossuth County Agr. Ass'n, 49829

• Decision Date: 17 November 1959
• Docket Number: No. 49829,49829
• Citation: 251 Iowa 93,99 N.W.2d 292
• Parties: Paula PRIEBE, by her Parent and Natural Guardian, Berl E. Priebe, Appellant, v. KOSSUTH COUNTY AGRICULTURAL ASSOCIATION, INC., Appellee.
• Court: Iowa Supreme Court

Page 292

99 N.W.2d 292

251 Iowa 93

Paula PRIEBE, by her Parent and Natural Guardian, Berl E. Priebe, Appellant, v. KOSSUTH COUNTY AGRICULTURAL ASSOCIATION, INC., Appellee.

No. 49829.

Supreme Court of Iowa.

Nov. 17, 1959.

McMahon & Cassel, Algona, for appellant.

Linnan & Lynch, Algona, for appellee.

GARFIELD, Justice.

The question presented is whether there is substantial evidence, warranting submission to a jury, that plaintiff's personal injury was caused by defendant's negligence in any of the respects alleged. The answer depends upon whether reasonable minds might fairly reach different conclusions from the evidence, when viewed in the light most favorable to plaintiff, as to whether injury might reasonably have been foreseen or anticipated from the conduct complained of.

At the close of plaintiff's evidence the trial court ruled there was no evidence of defendant's negligence and directed a verdict for it. Plaintiff has appealed from the judgment entered thereon. We cannot agree with the trial court.

Precedents need not be cited for the familiar proposition it is our duty to view the testimony in the light most favorable to plaintiff. See, however, Holmes v. Gross, 250 Iowa ----, 93 N.W.2d 714, 717-718, and citations; Kohler v. Sheffert, 250 Iowa ----, 96 N.W.2d 911, 912-913.

Defendant is a corporation which annually presents the Kossuth County Fair in Algona. Plaintiff, age 15 when injured, and her brother Gary, about two years younger, were members of a 4-H club in the county who had been invited to exhibit at the fair calves reared by them. It seems not to be questioned that they, as well as their father (who paid to get into the fair), were invitees of defendant. They brought their animals to the fair grounds on the eve of the fair and, as directed, kept them in stalls in a pole barn which was about 60 to 70 feet from the gate to the 'ring' where they were to be shown and judged. This ring is inclosed by a fence made of two horizontal boards (apparently not over four and eight inches wide, respectively) a foot or two apart, nailed to upright posts.

Paula (plaintiff), Gary and their father arrived at the grounds on the second day of the fair between 6 and 7 a. m. At 8:30 Gary exhibited a heifer raised by him. Announcement was made over a loudspeaker when animals entered in the various classes were to be brought to the ring from the barn in which they were kept. As a class left the show ring the next class to be judged was brought in. About 10:30 it was announced that the class in which Gary had entered a 15-months-old animal called 'Blackie,' weighing 895 pounds, should be brought to the ring. Twenty-five to 30 animals were in this class. All weighed about the same as Blackie.

Gary then led the animal from the pole barn toward the ring. When it was perhaps half way there Gary stopped Blackie so he might put the final touches upon his entry. Paula and her father were there to help. (Paula and Gary helped each other care for their calves.) At Gary's request Paula was holding the rope on Blackie's halter when one of two or three boys chasing each other ran into the front of the animal, causing it to rear up on its hind legs and come down with its front hoofs on Paula's leg, breaking the bones into a number of parts and severely injuring her.

According to the witness Meyer, 'The boy flew under the calf and then got up and started running.' Mr. Priebe testifies 'the kid rolled under the calf, rolled up against my leg and kind of knocked me down.' The three Priebes and Blackie had been in the place where the injury occurred two or three minutes. The boys came from a water tank which appears, from photographs before us, to be about 20 feet distant and in plain sight.

There is much testimony Blackie was a quiet animal--indeed a pet. 'Before being struck by the boy the calf was standing there kind of half asleep. He had been brushed and curried so many times he enjoyed it.' After plaintiff was injured Gary leg Blackie into the ring and it was awarded first place in its class. Of course Paula was incapacitated from showing her entry. Others of the 25 or 30 animals in Blackie's class were in the same area but nearer the ring than Blackie was when Paula was injured.

On the morning in question 100 to 150 people in addition to the animals were in the area between the barns and the show ring. The area was open to all who attended the fair. No attempt was made to restrict it, by use of ropes, temporary fencing, police or otherwise, to exhibitors or others helping with the animals. A space of about 50 to 60 feet separates the pole barn to which Blackie was assigned and the show ring. (As stated, it is ten feet further to the gate to the ring.) The distance from the east edge of the ring to the west edge of other barns east of it is about 40 or 50 feet. Bleachers for spectators at events in the ring were on the west side thereof. The bleachers were filled with spectators on the morning in question.

There is undenied evidence 10 to 12 boys, aged 10 to 12, were 'tearing around' among the people and animals in the area between the barns and the show ring at least two hours before Paula was injured and it may be fairly inferred the two or three boys chasing each other were some of them. This was within plain view of the ring where two officials--department superintendents of defendant--were stationed. At least one of them was in the ring all the time.

Mr. Meyer, disinterested so far as shown, testifies:

'Q. Were there children running around the area other than the one you described? A. Yes, there was 10, 12 boys from the age of 10 to 12.

'Q. Would you describe for us their activities, their running? A. Well you know how boys are. They tear back and forth. * * *

'Q. Did it appear anyone was chasing this lad? Yes there was 2 or 3 of them chasing each other.

'Q. How many calves were in this area adjacent to the show ring getting ready for the next class? A. I would say approximately 25 to 30.

'Q. Were calves being led back and forth in this area? A. Yes * * *.

'Q. Had this activity of the boys you described been going on for some time? A. That went on all morning there with them boys tearing around there.

'Q. Did you at any time during this morning see anyone attempt to make any effort to control the activities of the crowd or these boys? A. No, I didn't.'

On cross-examination Meyer says:

'Q. There is no way to stop kids from running around fairs is there? A. Well, you take the Spencer fair, they don't do it, they don't allow them to do it. * * *

'Q. They had been doing that for some time, had they? A. They had been doing it all morning there.

'Q. Anybody that was out there could have seen these boys running around, couldn't they? A. Yes.'

The witness Decker testifies, 'There had been a number of children playing around the area for some time. There was no attempt by anyone to control their activities.'

Plaintiff's father says that as soon after Paula was injured as he could leave her, 'I went to the show ring where the PA system was and had them make an announcement to stop all this running around they were doing, that one girl already had her leg broken and I sure didn't want it to happen to anybody else. Then I went back to Paula.' His request for the announcement was to one of defendant's department superintendents and it was made by another superintendent, both of whom were stationed in the show ring.

There is much testimony no police officer was in the area between the show ring and the barns the day Paula was injured. Five of the six city policemen worked part time at the fair, mainly at the entrance to the grounds and near the racetrack. In addition two others were employed in the daytime, also about seven to nine senior boy scouts who directed parking of automobiles. All officers and scouts wore uniforms. Defendant's secretary testifies that defendant retained complete control of the grounds.

The above is a sufficient indication of the evidence. Plaintiff's petition alleges defendant was negligent in failing to provide: 1) a reasonably safe area in which to prepare livestock for showing; 2) adequate policing protection to reasonably control the crowd in the vicinity of the livestock sheds and show area; and 3) adequate supervision of the crowd or any restraints for control of the crowd in the vicinity.

While defendant is held to a stricter account for injuries to invitees than the owner of private premises generally, it is not an insurer of their safety and owes them only what, under the circumstances, it ordinary and reasonable care. 'It seems to be the general trend of the authorities that in almost all cases this question of due care, under the circumstances, is a question for the jury.' Clark v. Monroe County Fair Ass'n, 203 Iowa 1107, 1112, 212 N.W. 163, 165, 166, and citations; Dahna v. Clay County Fair Ass'n, 232 Iowa 984, 986-987, 6 N.W.2d 843, 844-845. See also Annotations 22 A.L.R. 610, 611; 53 A.L.R. 855, 856; 98 A.L.R. 557, 558.

In the Clark case, supra, a race horse bolted the track, jumped the fence surrounding it, ran against a lady standing 20 feet or more from the track and seriously injured her. We held the question whether the fair association used reasonable care was for the jury.

In the Dahna case, supra, plaintiff was injured when the crowd in the amphitheater, at the conclusion of the performance, hurriedly walked down over the seats to the exits. We held the fair association was not negligent in failing to provide guards or ushers to control the persons leaving the amphitheater. The opinion states this from Hawkins v. Maine & New Hampshire Theaters Co., 132 Me. 1, 5, 164 A. 628, 629, was applicable to the case:

'It was under no obligation to provide an attendant for every child, or to anticipate the isolated, willful and sudden act of one boy, the natural tendency of which was to inflict serious harm upon another. There is no evidence that such an incident...