Va. State Fair Ass'n v. Burton, Record No. 2723.
| Decision Date | 24 January 1944 |
| Docket Number | Record No. 2723. |
| Citation | 182 Va. 365 |
| Parties | VIRGINIA STATE FAIR ASSOCIATION, INCORPORATED v. HARVEY L. BURTON, ADMINISTRATOR OF THE ESTATE OF LANDON BURTON, DECEASED, ET AL. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. MASTER AND SERVANT - Joint Action Against Master and Servant — Verdict Exonerating Servant as Exonerating Master — Case at Bar. — In the instant case, an action for wrongful death against a Fair Association and an automobile race driver, it was alleged that at the time of the accident the driver was negligently operating his automobile and that he was the servant, agent or employee of the Fair Association. The verdict was against the Fair Association but in favor of the defendant driver. It was contended that the verdict and judgment which exonerated the driver, the servant, from liability necessarily exonerated his master or principal, the Fair Association.
Held: That the contention was true in so far as the liability of the Fair Association was predicated upon the negligence of the driver, but the exoneration of the driver did not exonerate the Association from liability flowing from the negligence, if any, of any of its other servants, agents or employees.
2. NEGLIGENCE — Duty Owed Invitee — Person Attending Fair Association Races — Case at Bar. — In the instant case, an action for wrongful death, plaintiff's decedent paid the required admission charges and was admitted to the premises of the defendant Fair Association where he was killed by an automobile, the driver of which was making a trial run for races to be produced by an independent contractor employed by the defendant.
Held: That plaintiff's decedent was an invitee on the premises of defendant and the latter owed him the duty to exercise ordinary care to see that its premises were reasonably safe for his visit, which obligation continued despite the fact that the defendant had employed an independent contractor to produce the races.
3. NEGLIGENCE — Duty Owed Invitee — Person Attending Fair Association Races — Sufficiency of Evidence — Case at Bar. — In instant case, an action for wrongful death, plaintiff's decedent paid the required admission charges and was admitted to the premises of the defendant Fair Association where he was killed by an automobile, the driver of which was making a trial run for races to be produced by an independent contractor employed by the defendant. No barriers to keep spectators who could not be seated in the grandstands from coming in dangerous proximity to the track along which the speeding cars were to run were provided and police who had been assigned to duty on defendant's premises were unable to cope with the situation. Loose nails or spikes were observed on the track by a casual spectator shortly before the accident and it developed that the flat tire which made the car overturn was caused by a puncture from a large nail or spike.
Held: That there was ample evidence to warrant the jury in finding that defendant had failed to discharge its obligation to decedent.
4. JUDICIAL NOTICE — Deflation of Tire as Causing Automobile Driver to Lose Control. — It is a matter of common knowledge that even at an ordinary speed a deflated tire is likely to cause the driver of a car to lose control of it.
5. NEGLIGENCE — Contributory Negligence — Person Killed While Attending Fair Association Races — Case at Bar. — In the instant case, an action for wrongful death against a Fair Association and an automobile race driver, it was alleged that at the time of the accident the driver was negligently operating his automobile and that he was the servant, agent or employee of the Fair Association. The verdict was against the Fair Association but in favor of the defendant driver. It was contended that plaintiff's decedent was guilty of contributory negligence since at the time he was struck he was on a bank, just beyond the rim of the race track, and had failed to heed the warning and efforts of the police to keep him in a proper and safe place. A policeman testified that decedent was "standing about half way the hill" when the automobile crashed through the fence. Other bystanders testified that he was within the safety zone indicated by the police.
Held: That the conflict of evidence was settled by the verdict of the jury in favor of the plaintiff.
6. ARGUMENTS AND CONDUCT OF COUNSEL — Curing Error — Instruction to Disregard Argument — Case at Bar. — In the instant case, an action for wrongful death, complaint was made of the inflammatory nature of arguments of counsel for plaintiff. Upon objection the jury was told that the argument was improper and was instructed to disregard the argument on the particular point objected to. There was no request for a mistrial.
Held: No error.
7. NEGLIGENCE — Joint Liability — Instructions — Case at Bar. — In the instant case, an action for death by wrongful act, plaintiff's decedent was killed when an automobile driven by one of the defendants overturned on the race track of defendant Fair Association. The trial resulted in a verdict in favor of the defendant driver and against the defendant Fair Association. The lower court refused to instruct the jury that the driver of the automobile was not the agent or employee of defendant Fair Association and that the latter was not liable for his negligence, if any, and this was assigned as error.
Held: That while there would have been some merit in the contention had there been a verdict against the Fair Association predicated upon the driver's negligence, there was no merit in the contention since the verdict was in favor of the driver and against the Fair Association and, therefore, it was immaterial whether the relationship of master and servant existed between the Fair Association and the driver.
Error to a judgment of the Hustings Court, Part II, of the city of Richmond. Hon. Willis C. Pulliam, judge presiding.
The opinion states the case.
Bowles, Anderson & Boyd, for the plaintiff in error.
Charles E. Maurice, Harold C. Maurice, Douglas S. Mitchell and W. E. Spain, for the defendants in error.
On September 27, 1941, Landon Burton, who was then approximately eighteen years of age, was a spectator at the fair which was being conducted by the Virginia State Fair Association, Incorporated, at Richmond. Among the attractions scheduled for that day were certain automobile races. While one of the cars, driven by John Thompson Cumming, was on a trial run, it left the race track, crashed through the fence, and ran into the crowd of spectators, killing young Burton and injuring others.
Burton's administrator brought an action for wrongful death against the Fair Association and Cumming, claiming that Burton's death was proximately due to the negligence of both defendants. It was alleged that Cumming, at the time of the accident, was negligently operating the automobile, and that he was the servant, agent, or employee of the Fair Association. The administrator also alleged that, independently of the acts of Cumming, its servant, the Fair Association was guilty of negligence in that it failed to exercise ordinary care to keep its premises reasonably safe for the plaintiff's decedent who was there as an invitee.
The trial resulted in a verdict in favor of the administrator against the Fair Association, but in favor of the defendant, Cumming. To review the judgment entered on this verdict, the Fair Association has sought and obtained this writ of error.
The first contention is, that since the plaintiff's case is based upon the theory that Cumming, the driver of the automobile, was the agent, servant and employee of the Fair...
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