Brosko v. Hetherington

16 Pa. D. & C. 761, 1931 Pa. Dist. & Cnty. Dec. LEXIS 126
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedNovember 5, 1931
DocketNo. 1230
StatusPublished

This text of 16 Pa. D. & C. 761 (Brosko v. Hetherington) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brosko v. Hetherington, 16 Pa. D. & C. 761, 1931 Pa. Dist. & Cnty. Dec. LEXIS 126 (Pa. Super. Ct. 1931).

Opinion

MacDade, J.,

— The present proceedings were instituted by the minor plaintiff and his father to recover damages occasioned by the minor plaintiff’s loss of an eye, caused by a sliced golf ball striking said organ of vision. Nicholas Brosko, the minor, was employed as a caddy on June 30, 1925, at the golf course of the Delaware County Golf Course (formerly the Aronimink Course) in Drexel Hill, Delaware County, Pa. While so engaged as a caddy he was struck in the left eye by a golf ball driven by the defendant from the first tee. The minor was caddying for one person of a foursome (four players), one of whom was the defendant. However, he was not attending this defendant, but a player thereof who teed off before the defendant attempted to do so, as hereinafter related.

The jury found in favor of the plaintiffs, awarded $625 to the minor and $435 to his father, very reasonable verdicts indeed.

The defendant has filed motions for judgment n. o. v. (having presented a written point at the trial for binding instructions) and for new trials.

Relative to the motion for judgment “non obstante veredicto,” we must give these plaintiffs, considering the verdicts of the jury were with them, every reasonable intendment and benefit of the facts proven by them and every inference to be reasonably drawn from the same and reject any and all adverse testimony of this defendant.

The minor plaintiff testified that, on June 30,1925, when he was eleven years of age, he went to the golf course and, after waiting for some time, was engaged as a caddy, being assigned to his employment by the caddy master of the golf course, with no direct contractual relation with the defendant or employment by him, except such as may be inferred by said assignment of caddying for a third person who was in the same foursome with the defendant. Evidently this boy was engaged by the caddy master. Prior to that day he had never acted as caddy, though he had been to the course to seek employment as a caddy on several other occasions. He testified that he, Buddy Feehan, Billie Feehan and a fourth boy were assigned by the caddy master as caddies for the members of a foursome of which the defendant was one; that he took a position about twenty-five feet to thirty feet to the right of the first tee and about six feet in front of it before the members of his foursome began to drive; that the golfer for whom he was caddying, who was not the defendant, drove his ball, and that he watched the course of the ball until it came to rest and fixed its position; and [762]*762then, as he was turning to look again toward the first tee, he was struck in the left eye by the ball driven by the defendant and as the former’s head was turning.

Buddy Feehan testified that at the time of this occurrence he was twelve years of age and went to the golf course in company with his cousin Billie and the minor plaintiff, and these three, together with the fourth boy, were assigned as caddies to the foursome. That the four boys went toward the first tee and took the position assigned to them by the club professional. He further testified that the defendant swung once at the ball and missed it and on the second stroke hit the ball in such a manner as to cause it to slice or veer very sharply to the right, striking the minor plaintiff in the 'eye. Buddy Feehan was at the time caddy for the defendant.

Billie Feehan testified that he accompanied his cousin Buddy and the minor plaintiff to the golf course on the day of this occurrence and that he was at that time nine years of age. That he was one of the caddies for the foursome of which the defendant was a member. He was unable to state for which man he was caddy.

Vincent O’Donnell, a golf professional of many years’ standing and experience, testified that he was the golf professional and .superintendent of the golf course on this date. He testified that he had been engaged in the game of golf since 1896, acting first in the capacity of caddy, then caddy master and thereafter as golf professional at a number of leading golf clubs, and his qualifications were conceded to be the best by one Andy Campbell, golf professional, who testified as an expert for the defendant. O’Donnell further testified that on this date, prior to the time of this occurrence, he designated the extreme back tee as the proper place from which the players should start. He testified that the minor plaintiff was employed as a caddy on that afternoon, but was unable to say to whom he had been assigned. He testified that, under the practice existing, the caddies were assigned to the players by the caddy master and that the caddies were to be paid directly by the players for their services. He further testified that he was at the first tee for some time prior to the accident, and as the defendant was driving he was just walking away from the tee with his head turned in the direction of the tee in order to observe the course of the ball being driven therefrom. He had placed the group of caddies, of which the minor plaintiff was one, in a position to the right of the tee and slightly in front of it.

He also testified and exhibited to the jury the manner in which the defendant, Hetherington, struck the ball. His testimony and actual demonstration showed that the defendant twisted his body sharply and pulled the club away from the ball and so struck the ball with the tip of the club instead of upon the face, thus causing it to take an extremely sharp curve or slice to the right. Further, he corroborated the testimony of Buddy Feehan that the defendant missed the ball entirely on his first attempt to drive it from the tee and that no warning of any kind was given by the defendant before or after he struck the ball.

The defendant introduced testimony, consisting of the defendant and two of his golfing companions, Daniel McPhail and William C. Filz. McQuillen, the other member of the foursome, was absent. The defendant also called as an expert .witness one Andrew Campbell, a golf professional.

The defendant testified in person that he had been playing golf since 1925, and that this occasion was his first visit to this course. He denied that the minor plaintiff and the two Feehan boys were caddies for his foursome. He testified that he never took lessons from a golf professional in an endeavor to learn the game. He also testified that he did not see any caddy near the bushes and did [763]*763not see the minor plaintiff until he was on the ground. The defendant admitted that he gave no warning.

Daniel McPhail’s attitude was to corroborate the defendant’s testimony that the Feehan boys and the minor plaintiff were not employed by the defendant’s foursome. This witness also testified that he saw people standing by the bushes where the plaintiff was struck.

William C. Filz testified that he was not watching the defendant when he drove; that he was conscious there were people in and among the bushes where the plaintiff was struck; that he is uncertain whether the minor plaintiff, the two Feehan boys and the fourth boy were caddies for his foursome or not.

Andrew Campbell, a golf professional, testified as an expert that the ball would not have sliced had the defendant hit it as Vincent O’Donnell described the striking, but had the ball been hit on the end of the club it would have gone at right angles. He further testified that slicing of the ball in this manner is a common occurrence and that people are frequently struck by golf balls on the course.

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Bluebook (online)
16 Pa. D. & C. 761, 1931 Pa. Dist. & Cnty. Dec. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brosko-v-hetherington-pactcompldelawa-1931.