Lynn v. Wheeler

HiggiNS, J. In this ease the plaintiff alleged the defendants in five particulars failed to exercise reasonable care for hiis safety while he was attending their automobile races as a paying customer; and thiat their negligence as 'Charged proximately caused 'his injury and damage. Proof substantially ais alleged in at least one of the particulars iis essential to recovery. Messick v. Turnage, 240 N.C. 625, 83 S.E. 2d 654; Smith v. Barnes, 236 N.C. 176, 72 S.E. 2d 216. The motion to nonsuit challenged the sufficiency of the evidence to go. to- the jury on my of the particulars alleged. To. support a verdict there must foe -both allegation and corresponding proof. Chambers v. Allen, 233 N.C. 195, 63 S.E. 2d 212; Maddox v. Brown, 232 N.C. 542, 61 S.E. 2d 613. The evidence must permit a legitimate inference of defendants’ actionable negligence and plaintiff’s resulting injury and damage. The .plaintiff failed to offer any proof either (2) that lighting of the track was inadequate or (5) thiat there was a negligent failure to inspect the vehicles entered in the race. There was no evidence of failure to inspect or that the Hudson when it entered the race was mechanic-ally defective in any manner which reasonable inspection would have disclosed. (3) With respect to the condition, of the .track, the plaintiff’s witness McRainey, a spectator, testified: “At the beginning of the race the condition of the track was smooth. At the end of the race the track was in fair to good condition. That night there was a small -beating out or (hole effect between 'the third and- fourth turns, . . . not a large area., approximately a foot -wide, two or three feet long. ... It was not over three to four inches deep.. . . . The hole began to appear during the final race ... I did not isee the Wheel come off. The car was in the fourth turn when I first saw it after .the wheel was- dropped. The wheel was ahead of the oar at tire time I saw it.” *661 Plaintiff's witness Carson testified: “(H)-is right rear tire came off just as /he came out of the turn. . . . The car . . . ispun and the tire came off the car, hit the bank and went straight up and over," into the stands. Plaintiff’s witness Fox testified: “I saw the Hudson come out of -the fourth turn -and it looked like the wheel came off of it and hit the bottom of the bank and shot straight up and came over;” into the seats provided for spectators. According to all the evidence the accident occurred during -the last otr feature race. The track had been used for about two and one-half ¡hours for other races, including the warmup or -trial heat for the feature. Nothing in toe evidence indicates the condition oif the track surface was unusual or dangerous. The evidence disclosed the Hudson isp-un in -negotiating toe fourth turn, cast toe wheel, injuring toe plaintiff. The depression in the track was between the third and fourth turns — not in the turn where toe Pludson went out of control. The depression developed during the last race. The evidence offered was insufficient to permit any inference toe defendants were negligent in maintaining the track. Specification No. (4) is embodied in No. (1) since toe injury alleged was caused by a flying wheel while toe plaintiff was in toe viewing stands. Consequently toe plaintiff must get to toe jury, if at all, on specification No. (1)- — -failure to erect adequate barriers to protect spectators during the races. (1) According -to all the evidence the racing surface was excavated, leaving a dirt bank three to- four feet high alongside the track between it and the viewing stands. The bank originally was perpendicular. However, erosion from toe top had reduced it slightly from a vea’tiioal angle. A few feet from this bank toe defendants had erected a chain fence to a height of three to four feet. This fence was secured -to light poles about 45 feet apart. Above toe chain fence for its full length and likewise secured to the light poles, toe defendants had erected a fox wire -barricade to .an additional height of .six to eight feet. The plaintiff testified he occupied a seat on toe third row from the bottom behind the barricade. Other witnesses said he was eight to ten rows back of the barricade. The closest seats to toe track were 15 to 20 feet from the embankment. The racing Hudson went into a spin at the turn. The right rear wheel broke loose, ran ahead of the vehicle on the track until it struck the dirt bank, vaulted toe entire barricade and landed in the stands, injuring the plaintiff. The .plaintiff testified he had been to other tracks at Loiwell, Hickory, Charlotte, North Wilkesboro, and Martinsville, Virginia. The Lowell barricades consisted of two heavy boards secured to poles five *662 or six feet high. However, he 'admitted these boards were on the inside of the track to protect the infield enclosure. He ateo testified that some kind of wire (which “looked heavy” goes all .the way up to the top of the grandstand at Hickory. No evidence was given 'as to -its height. If ¡any barricades' existed at the other tracks with which he is familial’, he did not testify with respect thereto., neither did he offer evidence of the condition at other nace tracks. The plaintiff, a paying customer, was am invitee at the race. The defendants, though not insurers of his safety, nevertheless were charged with the duty of exercising reasonable care for his safety. Justice Bobbitt, in Lane v. Drivers Association, 253 N.C. 764, 117 S.E. 2d 737, quoting from Justice Parker in Williams v. Strickland, 251 N.C. 767, 112 S.E. 2d 533, fixes the test by which to determine a race track operator's liability to his customers: “The general rule is that the owner or operator of an automobile race track is charged with the duty of exercising reasonable care, under the circumstances present, for the safety of patrons, that is a care commensurate with the known or reasonably forseea'ble danger.” Justice Parker, in Williams v. Strickland, supra, 'amplifies the rule: “If tlhe need is obvious or experience shows that an automobile race of the character and in the place p.ropo®ed requires, in order to afford reasonable protection to spectators, the erection of fences or similar barriers between the 'track ¡and the places assigned to ¡them, it becomes a part of the duty in exercising reasonable care for their safety to provide fences or barriers, the adequacy of which is dependent on the circumstances present, principally the custom of the business.” (emphasis added). Here no evidence is offered to' show any 'custom at other tracks operated under like circumstances, except at Lowell and Hickory a® previously noted. The record fails to ¡show facts -from which rtihe jury may infer that a barrier higher than 13 to 16 feet was the custom of the business or that injury to some spectator similarly situated is reasonably foreseeable unless a higher fence ¡or barrier is erected. If a higher fence is standard for the 'business, evidence to (that effect should have been offered. After’ careful consideration we conclude the evidence disclosed by the record is insufficient to permit any inference of actionable negligence on ¡the part of the defendants. The count should have allowed the 'demurrer to the evidence. The other serious questions raised by the appeal do not require 'discussion. The judgment entered in the court beloiw is Reversed.