Seymour v. New Bremen Speedway, Inc.

• Decision Date: 20 August 1971
• Citation: 287 N.E.2d 111,60 O.O.2d 236,31 Ohio App.2d 141
• Parties: , 60 O.O.2d 236 SEYMOUR et al., Appellants, v. NEW BREMEN SPEEDWAY, INC., er al., Appellees.
• Court: Ohio Court of Appeals

Page 141

31 Ohio App.2d 141

287 N.E.2d 111, 60 O.O.2d 236

SEYMOUR et al., Appellants, v. NEW BREMEN SPEEDWAY, INC., er al., Appellees.

Court of Appeals of Ohio, Third District, Auglaize County.

Aug. 20, 1971.

Syllabus by the Court

Where the driver of a race car, who had assumed the risk of injury during a race, is injured, and an accident crew provided for emergencies fails to promptly respond to the mishap, such crew is not liable where there is no evidence to indicate which portion of the damage is attributable to the tardiness.

Bowers, White & DcMeo, Lima, for appellants.

Curtner, Selva, Parkin & Seller, Dayton, for appellees.

COLE, Judge.

Although the plaintiffs, appellants herein, assign numerous errors, most of them are directed at findings made by the court as a predicate for granting the motion made by defendants, appellees herein, at the close of plaintiffs' evidence for a directed verdict. As we here consider these assignments of error, 1, 2, 3, 4, 6, 8, 9 and 10 are directed to the basic issue as to the correctness of the trial court's decision in granting this motion. The other two issues or assignments of error are directed to the refusal of the trial court to grant plaintiffs' have to amend their petition in certain particulars. We shall deal first with the fundamental issue: the direction of a verdict for defendant by the trial court. As the plaintiffs state, it is only when reasonable minds could come to but one conclusion that the issue becomes one for the court. The issue is whether or not reasonable minds could differ as to the facts herein involved, pertinent to the applicable law.

Plaintiff Richard Seymour was a racing driver of long experience. He knew the risks inherent in auto racing: the risk of collision, the risk of spinning, even the risk of fire. He clearly testified to these customary risks; even to the fact his clothes were fireproofed to minimize the danger of fire. The testimony of the others from his race track crew leaves no doubt that he knew of these of these risks.

'Where the injured party knowingly and deliberately assumed the risk that led him into immediate danger, he ought not to have a remedy for injuries brought on by his own act, and arising from perils that were so obvious and certain.' 39 Ohio Jurisprudence 2d 615, Negligence, Section 80; Krause v. Morgan (1895), 53 Ohio St. 26, 40 N.E. 886.

As applied specifically to racing, we have the case of Roeckner v. Pence Drag Strip, Inc. (1965), 10 Ohio App.2d 20, 225 N.E.2d 284, where paragraph 1 of the syllabus states:

'A person is not chargeable with assumption of risk unless he knows about the danger or risk, appreciates the possible consequences, and consents to assume it.'

In short, knowledge of the risk is essential, and here plaintiff Richard Seymour knew of the risks of collision, of hitting the surrounding fence or wall, of spinning, and of the possibility of fire. Whether he signed a release or not, he assumed the risk of these inherent dangers by simply entering the race.

There is some testimony by one witness as to an oil slick upon the surface of the track. However, this witness also indicates that this was not present prior to the race involved. It must therefore have developed during the course of the race itself and constituted a development over which the defendant had no control and one of the risks assumed.

We would conclude that when Richard Seymour's auto collided with the wall and spun, this was a risk assumed by him. When a car behind collided with his, this was a normal and anticipated risk of which he knew and which he assumed. When the gas tank burst and fire resulted, this was a risk, one greatly feared, which he had assumed by taking part in the race.

Therefore, up to the moment his auto came to a halt with him in it in a dazed condition and the fire underway, there was nothing to constitute negligence of the defendants, and all risks to that moment had been assumed by him.

The plaintiffs, in their brief, essentially admit that Richard Seymour assumed the risk of fire upon his person. They argue, however, that the defendants had no fire-fighting apparatus or personnel posted and that this neglect led to his injury. However, the question is raised as to when this negligence, if it existed, became operative so as to be the proximate cause of the injuries alleged.

The driver was within seconds pulled from his vehicle by another driver who stopped his car somewhat ahead of him and ran back. It is clear from the testimony that there was no general knowledge at this time that the car or the driver was burning. Such cars use alcohol as fuel which burns without a visible flame and may be recognized only by the heat waves and occasional plumes of smoke from other burning substances. Here the first person to recognize this condition was the driver who pulled the plaintiff driver from his car, although some witnesses state that they had seen heat waves from the car about this same time or shortly prior thereto. The assisting driver threw the injured plaintiff to the ground and rolled over him to smother the flames.

This apparently served then as a signal to the stands and to the race personnel that fire was involved. Plaintiff Diane Seymour testified that the moment the spin was apparent she saw the track ambulance start to move, thus indicating some action by defendant to aid the plaintiff driver.

Thus, up to this point, whether the defendant had had fire extinguishers at the track corners and more personnel there or not, the sequence of events would have been the same, and these events would be included within the orbit of the assumed risk. It would also take a certain amount of time to go from the corner station to the point of the accident. Therefore, any negligence could not become operative so as to be the proximate cause of injury until this added time expired.

However, at this moment, it is clear from the evidence that the vast bulk of the damage had been done, and the vast bulk of the burning of Richard Seymour's legs and face had already occurred. Before any track assistance could have been reasonably effective, the second driver had already removed Seymour from his car and substantially extinguished the flames.

There is, however, evidence that the uniform was still smoldering and was cut and torn off of Seymour by others. The theory of the plaintiffs is that this smoldering uniform contributed to Seymour's injury, which would not have occurred if the defendants had had adequate fire extinguishers and personnel to then extinguish the smoldering cloth.

This is not a case of concurring causes, since any alleged negligence of the defendants could not have become operative until this moment when most of the damage had occurred as a result of causes the risk of which had been assumed by the injured plaintiff. There is essentially a contention that a preexisting injury, i. e., that received by virtue of the assumption of risk, was aggravated by the negligence of the defendant at this moment. But there is no evidence to indicate which portion of the damage occurred after the defendants' alleged negligence and could conceivably act as a proximate cause. We know from Palker's testimony that Seymour's legs were on fire at the time he was taken from the car, and at this point there could have been no proximate cause of injury or of a failure to assist. The accident had only happened seconds before. Then, Palker placed him on the ground and rolled on him and believed he had the fire extinguished as far as the flames were concerned. In Exhibit 12 there is obviously charred cloth on Seymour's legs, and Palker's bare hand is on the back of one lower leg. At this moment, we would find from the...