Everett v. . Goodwin

BeogdeN, J. 1. What duty does one golf player owe another in playing tbe game ? 2. What duty does tbe owner of a golf club owe to its patrons paying a fee for tbe privilege of using tbe course? A writer in Law Notes of November, 1931, says: “Serious accidents resulting from tbe playing of tbe Eoyal and Ancient Game of Golf have been infrequent — that is, if one is to judge from tbe paucity of authority on tbe subject. Nevertheless, tbe few reported cases involving actions of this nature emphasize tbe fact that there are legal as well as other hazards incidental to tbe game. Tbe courts are generally in accord on tbe point that a golfer, when making a shot, must give a timely and adequate warning to any persons in tbe general direction of bis drive.” Tbe only decided cases, squarely in point, which tbe writer has been able to find are as follows: Toohey v. Webster, 117 Atlantic, 838, 23 A. L. R., 440; Biskup v. Hoffman, 287 S. W., 865; Schlenger v. Weinberg, 150 Atlantic, 434, 69 A. L. R., 738. All tbe foregoing cases are referred to in tbe issue of Law Notes, supra, and also, in 69 A. L. R., 740. Certain general principles of law are stated in tbe opinions referred to. For instance, in tbe Weinberg case, supra, tbe Court said: “A golf course is not usually considered a dangerous place, nor tbe playing of golf a hazardous undertaking. It is a matter of common knowledge that players are expected not to drive their balls without giving warning when within bitting distance of persons in tbe field of play, and that countless persons traverse golf courses tbe world over in reliance on that very general expectation.” In tbe Toohey case, supra, tbe defendant testified that be called “fore” before striking tbe ball. There was other testimony to tbe effect that *738 no sucb warning was given, and, if any at all, it was too late to be effective. Tbe Court said: “This raised an issue of fact as to whether adequate and timely warning was given to the plaintiff, and, therefore, the question of defendant’s negligence was properly left to the jury.” The dominating idea bearing upon the subject is that a player upon a golf course must exercise ordinary care in playing the game, and particularly in driving the ball. Of course, the duty to exercise ordinary care is dependent upon the surrounding facts and circumstances of the given case. The evidence tends to show that a golf ball when driven, travels at high speed and is not easily avoided. So that a person of ordinary prudence would reasonably anticipate that injury would probably result to others within the range of the drive. In the case at bar, the plaintiff was rightfully upon the course, and the defendant Goodwin was fully apprised of his presence. The record discloses that rules of safety were promulgated by the corporate owner of the golf course to the effect that the front match should be allowed at least two drives by the match immediately following, so as tO' eliminate the probability of being struck by a driven ball. The evidence further tended to show that the defendant was violating this rule of safety. There was also evidence that the defendant gave no warning to plaintiff at the time of making the drive. However, there was positive testimony offered in behalf of defendant that proper warning was given. Hence the question of warning was properly submitted to the jury. There was evidence tending to show that the match played by plaintiff and his companion, and the match played by the defendant and his companions merged and became one game. This, however, is denied by the plaintiff, and evidence offered by him tends to support his contention. Defendant testified that the parties merged into a fivesome from the 5th to the 16th hole, and between these said holes the game proceeded “strictly according to honors.” This is explained to mean that “the man who makes the lowest score is the man who has the honor of making the first play at the next hole.” It does not appear who the “honor” man was at the 16th hole, but it is clear that the plaintiff had the “honor” of having his knee cap broken by a ball driven by the defendant, and it is obvious that thereafter all “honors” ceased. Obviously, a different rule of liability would apply if there was a merger of the two matches, but as there was conflicting evidence upon this point, the entire evidence was properly submitted to the jury. The second question propounded involves the duty imposed by law upon the owner of a golf course. Manifestly, it is the duty of the owner to exercise ordinary care in promulgating reasonable rules for the protection of persons who rightfully use the course, and furthermore, to *739 exercise ordinary care in seeing that tbe rules so promulgated for tbe protection of players are enforced. Tbe owner of a golf course is not an insurer, nor is sucb owner liable in damages for misbaps, accidents and misadventures not due to negligence. In tbe case at bar tbe evidence tends to show that tbe owner of tbe course bad promulgated certain rules designed to protect players, and in an effort to see that sucb rules were enforced it bad employed rangers who were charged with tbe duty of supervising tbe course and enforcing tbe rules and regulations prescribed by tbe owner. There is evidence that tbe rules so prescribed were openly violated, and that tbe defendant owner, through its agents and employees, made no effort to caution offending players or otherwise to discharge tbe duties imposed by law. Therefore, tbe liability of tbe owner was properly submitted to tbe jury, and tbe judgment based upon tbe verdict, must be upheld. No error.