Westborough Country Club v. Palmer

• Decision Date: 22 May 1953
• Docket Number: No. 14705.,14705.
• Parties: WESTBOROUGH COUNTRY CLUB v. PALMER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F.2d 143 (1953)

WESTBOROUGH COUNTRY CLUB v. PALMER et al.

No. 14705.

United States Court of Appeals Eighth Circuit.

May 4, 1953.

Rehearing Denied May 22, 1953.

COPYRIGHT MATERIAL OMITTED

Norman Bierman, St. Louis, Mo. (Norris H. Allen, William R. Gilbert and Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, Mo., on the brief), for appellant.

Robert C. Ely, St. Louis, Mo. (Wayne Ely and Ely & Ely, St. Louis, Mo., on the brief), for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment entered pursuant to verdicts in favor of appellees Ann Palmer and Gertrude Palmer against Appellant Westborough Country Club in an action brought by them against Westborough Country Club and one Louis Balazina to recover damages on account of personal injuries suffered by Ann Palmer. Plaintiff Ann Palmer received injuries when she was struck by a golf ball while a passenger in an automobile traveling along a highway over the golf course of Westborough Country Club. While there were two plaintiffs it is conceded by all parties that any liability to Gertrude Palmer is dependent upon whether or not Ann Palmer has a right to recover damages and hence on this appeal we may treat the case as if Ann Palmer alone were involved. It was alleged in the complaint that defendant Westborough Country Club was negligent in the construction and maintenance of its golf course and roadway which crossed the links leading to the clubhouse and swimming pool, it being alleged that it was necessary for Ann Palmer and the other occupants of the automobile in which she was a passenger to proceed from the public highway onto and along defendant's roadway and across the fairway of defendant's golf course so that she was likely to be struck by golf balls driven by players on the golf course, and that defendant Westborough Country Club knew or should have known that she was likely to be struck by golf balls driven into the area by players on its course. Plaintiffs also sought recovery from defendant Balazina on the ground that he had carelessly and negligently driven the golf ball which struck Ann Palmer when he knew or should have known of her presence in front of him and of the likelihood of her being injured.

Defendant Westborough Country Club answered denying negligence and pleading contributory negligence on the part of Ann Palmer.

At the time of receiving her injuries Ann Palmer was a girl 16 years of age. With six other companions she was an occupant of an automobile being driven on a highway over Westborough Country Club golf grounds toward the clubhouse and swimming pool of said club on its grounds. The road extended in an easterly and westerly direction and it was crossed by a fairway extending in a northerly and southerly direction. There was located on this fairway at a point approximately 60 yards south of the road a tee so that golfers in teeing-off would normally strike the ball toward and over and across said road, and there was a large tree located between the tee and the green which was in the nature of a hazard. Ann Palmer and her companions at the time of the accident resulting in her injuries were enroute to a swimming pool owned and operated by the Country Club and for the use of which it charged a fee. They were, it is conceded, invitees and Ann Palmer was not a patron of the game of golf nor was she a spectator but her sole purpose of being on the golf grounds was to go swimming in the Country Club's swimming pool. As the automobile proceeded westward, 4 golfers were observed at the abovementioned tee. They were equipped with golf clubs and the driver of the car stopped it, apparently fearing that a player was about to tee-off toward the road. There was testimony that one of the players waved his arm indicating that he was signalling the driver of the car to proceed westward. The car then proceeded and apparently about the same time the defendant Balazina teed-off, striking the ball so that it would fly in a low course and thus miss the branches of the aforementioned large tree. The ball in its flight struck Ann Palmer inflicting personal injuries for which damages were sought to be recovered in this action. There was evidence that defendant Balazina struck the ball which hit Ann Palmer; that before teeing-off he looked for the presence or approach of any vehicle on the road but saw none and he then addressed the ball concentrating his attention and vision on the ball so that there intervened some considerable time between the time he looked for the presence of a car on the road and the time when he actually teed-off, and there was evidence that it was the usual practice and that it was professionally proper that the player after looking for the presence of any obstacle on the fairway would direct his sole attention to the ball and that normally some time estimated variously in length would elapse between the time the player looked for obstacles and the time he struck the ball. There was testimony by experts that the construction and maintenance of a golf course with the fairway crossing a road leading to the clubhouse and facilities was a usual and customary arrangement, but there was testimony that in the vicinity of St. Louis only 3 of the golf courses were so constructed and that 15 others were constructed so that the fairway did not cross the roadway leading to the clubhouse facilities. There was evidence that Ann Palmer was not a golfer, that she knew but little of the game, that she saw the golf players at the tee but did not know in what direction they would tee-off, and that she did not appreciate the danger in traversing this road in close proximity to the players. There was testimony that she had frequently passed over this roadway going to and from the clubhouse and other facilities during a period of about 8 years but that she was not a spectator of golf games on the golf course. There was also evidence that it was customary and in accordance with the rules of the game of golf that one teeing-off would give warning if anyone were in a position where he might possibly be struck by the ball by calling "Fore" and that no such warning was given by the defendant Balazina when he teed-off at the time here involved. The evidence will be further developed in the course of this opinion.

At the close of all the testimony defendant Country Club moved for a directed verdict which motion was denied and the case was submitted to the jury on instructions to which the Country Club saved certain exceptions. The jury returned a verdict in favor of the defendant Balazina and in favor of plaintiffs and against the Country Club. Pursuant to the verdicts returned the court entered judgment in favor of Ann Palmer for $6,000 and in favor of Gertrude Palmer for $1,000. From the judgment thus entered the Country Club prosecutes this appeal seeking reversal on substantially the following grounds: I. The court erred in denying its motion for a directed verdict in its favor. II. The court erred in denying the Country Club's motion for judgment notwithstanding the verdict for the reasons set out in its motion for directed verdict. III. The court erred in refusing to give the Country Club's proposed instruction which read as follows: "The court instructs the jury that if you find and believe from the evidence that the tee from which Balazina struck the ball, and the roadway on and over which the automobile in which plaintiff Ann Palmer was a passenger, was being operated and driven at the time of the incident in evidence, were maintained and located in a usual and customary manner similar to which tees and roads at other private golf clubs and golf links are maintained and located, and if you find that it was not negligence on the part of defendant Westborough Country Club to so locate and maintain its aforesaid tee and its aforesaid road then your verdict will be for defendant Westborough Country Club." IV. The court erred in certain portions of its charge to the jury to which defendant Country Club excepted.

As preliminary to a consideration of the contention that the court erred in denying the Country Club's motion for a directed verdict it would seem appropriate to call attention to the rule that where the motion has been denied and the jury has returned a verdict the evidence must be viewed in a light most favorable to the prevailing party. We must assume that the evidence proved all facts which it reasonably tended to prove and the prevailing party is also entitled to the benefit of all favorable inferences that may reasonably be drawn from the facts and circumstances proven. We cannot concern ourselves with any question of conflict in the evidence but must assume that all such conflicts have been resolved by the jury in favor of the prevailing party. Neither is it our province to weigh the evidence nor consider the credibility of the witnesses.

It is urged that no liability could be attributed to the defendant Country Club for the manner in which its golf course was laid out and maintained because it was laid out in the usual and customary manner. There was, it is true, some evidence that the construction of the golf course was in accordance with prevailing custom, but the witnesses who so testified admitted that in the vicinity of St. Louis out of some 18 golf courses only 3 were so laid out and maintained and we think the jury was not bound to find on this testimony that the defendant's golf course was laid out and maintained in the usual and customary manner of maintaining such courses in the vicinity where this course was located. But even if it should be conceded that this golf course was so laid out and maintained in accordance with the customary usage it does not follow, we think, that that alone would be a complete defense to this action. This would not conclusively fix the standard of care required of the operator as a matter of...