Roeckner v. Pence Drag Strip, Inc.

• Decision Date: 29 December 1965
• Citation: 225 N.E.2d 284,10 Ohio App.2d 20
• Parties: , 39 O.O.2d 61 ROECKNER, Appellee, v. PENCE DRAG STRIP, INC., Appellant.
• Court: Ohio Court of Appeals

Page 20

10 Ohio App.2d 20

225 N.E.2d 284, 39 O.O.2d 61

ROECKNER, Appellee, v. PENCE DRAG STRIP, INC., Appellant.

Court of Appeals of Ohio, Second District, Shelby County.

Dec. 29, 1965.

Slicer & Roberts, Dayton, for appellee.

R. E. Boller, Jr., Sidney, for appellant.

KERNS, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pieas of Shelby County.

The plaintiff's petition, which explains the nature of the controversy, provides in pertinent part as follows:

'That the defendant, Pence Drag Strip, Inc., owns and operates a race track on which automobile race drivers enter into competition with each other for monetary prizes, and at which races spectators pay an admission fee to the defendant to view said races;

'That on or about July 7, 1963, the plaintiff, Dale Roeckner, entered his racing automobile in a certain race at defendant's track located in Shelby County, Ohio; that the defendant, through its agents, servants and employees, was erecting a wire fence to separate the racing area from the spectator area and the pit area, and that rolls of wire fence were lying on the ground parallel with the track; that the plaintiff, during one of the racing heats, went off the asphalt surface of the track and onto the dirt shoulders parallel thereto; that part of the wire fence was unrolled and lying on the dirt shoulders, and when plaintiff's racing car went across said fence, the fence tore loose the gasoline tank, causing an instantaneous explosion and fire; that the plaintiff, Dale Roeckner, received second and third degree burns on his hands and arms which required hospitalization and other medical attention.

'Plaintiff further says that the explosion and fire and the resulting personal injuries were directly and proximately caused by the acts and omissions of the defendant, its agents, servants or employees acting in the scope of their employment in the following respects, to wit:

'1. In failing to have the track of the defendant and the surrounding area in a safe and proper condition.

'2. In maintaining rolls of wire fence near the racing area, knowing the likelihood of the racing automobiles to leave the track and drive onto the dirt shoulders adjacent thereto.'

The defendant's answer, while denying negligence, also sets up the defenses of contributory negligence and assumption of the risk.

The issues were tried to a jury which returned a verdict in favor of the plaintiff in the sum of $5,650.

Thereafter, the defendant filed a motion for a new trial and a motion for judgment notwithstanding the verdict. Both motions were overruled by the trial court.

In the present appeal, the defendant agrees that there was sufficient evidence to raise a jury question as to its negligence, but contends that the evidence presented upon the issues of contributory negligence and assumption of risk was such as to preclude the submission of the case to the jury.

Hence, although no assignments of error are set forth as such in the brief of defendant, appellant herein, the entire case appears to depend upon whether the trial court erred in overruling the defendant's motion for judgment notwithstanding the verdict.

According to the defendant, the drag strip is about 40 feet wide and extends from north to south. There are no races held thereon in the conventional sense. Only one racing car at a time uses the track. In this type racing, a car starts from a stationary position and accelerates until it reaches a point about half way down the track where it passes under an automatic timing mechanism. The last half of the paved raceway is used solely for deceleration. The defendant's track was paved with concrete for a distance of 100 feet and with asphalt for a further distance of one-half mile.

On July 7, 1963, the plaintiff brought his racing car to the defendant's track and entered it in racing events to be held that afternoon.

The defendant at the time was in the process of erecting a chain-link fence along the west side of the track for the purpose of protecting spectators. Part of the fence had been...