Kuemmel v. Vradenburg

239 S.W.2d 869

• Court: Court of Appeals of Texas
• Decided: May 23, 1951
• Docket: 12215
• Status: Published

Opinions

POPE, Justice.

. This is an appeal from a judgment on a jury verdict convicting defendant of negligence arising out of a head injury proximately cause by a “hot-rod” racing car which ran into the minor plaintiff, who was a spectator at a car race.

The appeal concerns the following points :

(1) Was there any evidence and sufficient evidence to support the jury finding that the defendant was negligent in failing to maintain a barrier of reasonably sufficient strength to protect the spectators?

(2) Did the trial court err in sustaining an exception to defendant’s answer and in refusing to submit an issue presenting the parents’ negligence as the sole proximate cause? The answer alleged the parents’ negligence in failing to supervise the child and in permitting him to go to a place of danger.

(3) Did the evidence support a damage issue which permitted recovery for future physical pain and mental anguish ?

(4) Was the sum of $12,000 excessive? We have examined the other points urged by appellant but find they are without merit.

On Easter Sunday, 1949, Mr. and Mrs. Vradenburg took their three-year-old son, Gregory, to Shadowland Race Track in Bexar County, where both an Easter Egg Hunt and “hot-rod” races occurred. A “hot-rod” was described as an automobile which had been assembled from a wide assortment of parts from different automobiles. The Vradenburgs paid their admission charge and entered the grandstand to watch the races. By stipulation and the evidence the defendant had control over and was proprietor of Shadowland under a rental agreement. At the intermission the child engaged in the Easter Egg Hunt, and afterwards, while the races were again in progress, the parents and the child left the grandstand and stood among other spectators alongside the track. One of the racing cars then left the track and struck the minor plaintiff who was on the spectator side of a protecting barrier made of two cables and cedar posts. This suit was brought by the minor only, and he recovered $12,000 on a jury verdict.

Appellant has briefed the case on the theory that the trial court has held the defendant negligent per se. On the contrary, supported by the evidence, there was a jury finding that the defendant was negligent in failing to maintain a barrier of reasonably sufficient strength. Defendant undertook to show that by maintaining the class of fence customarily used he had discharged his duty. Much of the evidence centered upon the inquiry whether the customary fence had been maintained, which the jury decided against the defendant. Defendant lost the case on the proof, facts and finding of negligence, rather than by reason of negligence per se.

The duty toward invited spectators of amusements may vary with the particular sport, but in the instance of an automobile race, the rule is summarized in 1 Blashfield, Cyclopedia of Automobile and Practice, § 763, as follows:

“The proprietor or promoter of an automobile race held as an amusement enterprise owes the duty of ordinary care to protect spectators lawfully present from injury.

“W'hat shall constitute the proper degree of care depends upon the circumstances surrounding the particular race.

“For example, at a race held upon a state fair race track, which was circular in form, where spectators on the sides of the track were protected only by a flimsy wooden fence, and the speed of the machines tended to make them leave the track, it has been held to be negligence to permit the cars to be driven in excess of a mile a minute.

“However, a person or association maintaining premises on which automobile races are conducted as an amusement enterprise, or as an attraction at a state fair or the like, owes to invitees the duty to exercise ordinary care to see that the premises are reasonably safe. This obligation continues despite the fact that an independent contractor is employed to produce the races.

“A fair association or the like may therefore be found to be negligent in failing to provide suitable barriers or safety zones to prevent spectators from coming in dangerous proximity to the race track, especially where there are spectators who cannot be accommodated in the grandstand.”

Arnold v. State, 163 App.Div. 253, 148 N.Y.S. 479, 483, states the rule to be that:

“Reasonable care required special construction to provide- for the safety of those invited by the state to a place of public entertainment provided by itself. * * *

“If a race cannot be held without inherent and extreme risk to life and limb, the command of the law is that it must not be held at all.

“The greatest and most obvious source of danger from a nonprotected track was not guarded against except by a flimsy fence, which could not resist a powerful car, with tremendous momentum, in case it left the track, which the commissioners knew, or should have known was liable and even likely to happen. * * *

“I hold the state liable for holding or permitting to be held on its own ground, under the circumstances disclosed by the evidence, such a fast race, with powerful cars, on an unprotected track, without the exercise of reasonable care to provide against accidents well known to be likely to happen.”

Accord, Virginia State Fair Association v. Burton, 182 Va. 365, 28 S.E.2d 716, 61 C.J.S., Motor Vehicles, § 577.

The charge substantially applied the above standard of duty toward invitees and the finding that the barrier was not of reasonably sufficient strength to protect the spectators was supported by the evidence. The appellee child with his parents, upon arrival at Shadowland, at first went to the grandstand. While the last race was in progress they left the grandstand in order to avoid the crowd. The child walked a' few feet ahead of his parents and they all stopped near the barrier to watch the races. They stood among other spectators and never got beyond the spectator side of the protecting barrier. The testimony varied, but one witness stated that the child’s hands were touching the barrier. The other testimony placed the child away from the barrier. During the races, warnings were given the spectators to stay away from the barrier, but spectators'did not move frotfl the barrier as the races proceeded. ' The child never ceased to be an invitee to whom the ' duty was owed. Automobilfes belonging to spectators were parked alongside the barrier. One of the' speeding “hot-r'ods” left the oval shaped racing track and proceeded approximately twenty or twenty-five feet across the space between the track and the barrier, struck the barrier, collided with: the automobiles' parked on the spectator side of-the1 fence, ahd hit the appellee causing severe head injuries.

The proof 'in this'case shows that of- the three -classes of protective ■ barriers customarily used at such racing tracks, the post and' cable fence is considered 'the best and that such- a fence was in use at Shadowland when the accident occurred.

"Whether "we agree with the jury is not the issue before us.' Whether there was evidence to -support the jury’i finding of negligence in failing- to provide a barrier of reasonably' sufficient strength to protect the spectators is the issue. Appellant; Kuemmel, testified that the purpose of the barrier whs to protect both the spectators and aRo the “-hot-rod” drivers by pushing a vehicle back on the track. Four other qualified witnesses testified -that -the -purpose of the barrier was. to deflect the car So it would not come through the fence-into the spectators. - An expert who had been on ISO different “hot-rod” tracks the year prior to the accident stated that the" customary size cable used in the construction of the barrier was - “three-quarter inch up to one and a quarter inch” cable. He also stated that a five-eighths .inch cáble. was one-eighth "inch smaller than usual. These facts tend to show the size of cable customarily required by the “hot-rod” racing fraternity to protect spectators. The car instead of being stopped or deflected on contact with the barrier, according to some of the witnesses, sheared the posts, broke a cable, and came on through the cables .and beyond the fence into'the crowd. Appellant Himself said the cable was only five-eighths inch cable, which was below fhat customary standard set by" the expert called’as his witness. Another witness said that it was less than half-inch" cable, and the child’s fáther ‘said it Was “about the size of my little finger.” Another witness estimated the cable to be three-eighths inch cable. Ample evidence existed to show that the barrier fell below the’ customary standards.

Moreover, all the evidence shows .that the barrier had two strands of cable anchored to posts set in concrete. One witness stated the top strand was chest high and the bottom strand was ankle high and sagging. Another witness said the top strand was shoulder high and the other was six inches from the. ground. Still another yvitness said the top strand was chest high and. the bottom strand was "three feet off the ground. Another witness said the tóp cable was four feet from the -ground and the’ bottom cable was sixteen or eighteen inches from the ground. Another witness- said the top cable was thirty-six inches high and the bottom one was twenty-four inches:- Still another said the top cable was fifty inches and thq other was eighteen inches from the ground.- Other witnesses expressed different views. Photographs-of the fence at the place-of the accident showed that the arrangement of the cables was visible and apparent.

The. arrangement and condition of this fence was a matter, for the. jury to pass upon in answering .the question as. to,, its Strength viewed in connection with the expert testimony of how strong it was purposed to be. Custom was used to prove both-the class of fence and the quality of that class of fence used for these races. Shadowland had the customary class of fence,, but its quality fell below the customary standard of the class, according to the jury finding.

, Conformity with the uniform -custom, of persons engaged in a like business may. be considered as evidence of proper care, but this does not preclude a showing that the custom itself is a negligent custom. Taylor v. White, Tex.Com.App., 212 S.W. 656; Trinity & Brazos Valley R. Co. v. McDonald, Tex.Com.App., 208 S.W. 912. That is not the case before us. The jury has. here found, supported'by evidence, that there was nonconformity with the customary’ precaution used "at “hot-rod” races. 'Just as conformity with custom may evidence freedom from negligence, nonconformity may evidence the presence of negligence. Hubb Diggs Co. v. Bell, Tex.Com.App., 1 S.W.2d 575; 30 Am.Jur., Negligence, § 34; 6S C.J.S., Negligence, § 16; 30 Tex.Jur., Negligence, § 74.

We also believe the court properly sustained the exception' to the answer urging the parents’ negligence as the sole proximate cause of the injury.' It is not urged that the ruling on the exception forbade the introduction of any, evidence as to the child’s position near the barrier nor the ■ circumstances leading up to his. approach .to the barrier... It - is ’ conceded that the parents’ negligence: is not imputable to the child. The defense, of sole proximate cause is a rebuttal issue, since it rebuts the contention that .defendant’s act'Was the, proximate -cause, of the injuries sustained. Sole proximate cause was submitted in connection with another matter not here in dispute. The definition for that term and the other terms wére those usually employed in a charge and no objections were made to the definitions.

Negligence was defined as the failure to use that degree of care that a person of ordinary prudence would use under the same or similar circumstances.

Proximate cause was defined as an “act or omission which, in a natural and continuous sequence -of events unbroken by any new and intervening cause,' produces an event, and without which the event would not have occurred; and in order to constitute proximate cause' of an event, as that term is used herein, the act or omission complained of must be such that the particular injury complained of, or some similar injury, which might probably result therefrom, would, m the exercise of ordinary care, have been reasonably foreseen by a person of ordinary care ■ and prudence in the light of the attending circumstances.” ■We omit the portion relating to new and intervening cause.

Sole proximate cause, was defined as the only proximate cause. By definition, “sole proximate cause” contains the element of foreseeability, A finding of' “sole proximate cause” compels a finding 'that the injury was such .that, it would .“in the exercise of ordinary care have been, reasonably foreseen by a person of ordinary care and prudence in the light of the attending circumstances.”

This element of foreseeability also necessarily is included within the definition of negligence. How can a person fail to do an act which' produced an injury which would “in the exercise of ,ordinary care have been reasonably foreseen by a person of ordinary care and prudence in the light of attending circumstances,” without at the same time failing “to use that degree of care that a person of ordinary prudence would use under,.the same or similar circumstances?” If a person of ordinary care and prudence could. reasonably have foreseen the injury .in the exercise of ordinary care, that person cannpt do or fail to do something which -vvill so result and still be .ordinary and prudent. .To say that the ordinary prudent,man may do a thing which resulted in the injury he should have foreseen as an ordinary prudent man is a paradox. This is a serious indictment of the ordinary prudent man.. We think he would refuse to do that which he foresees probably will,result in tragedy. A person of ordinary prudence cannot be a careful person, free from negligence, and yet .fail to exercise ordinary care which results in an injury such as could be foreseen by a person of ordinary care and prudence. It becomes apparent that the element of foreseeability in the definition of sole proximate cause is negligence in fact. , The parents’ failure to supervise the child could not have been the sole proximate cause of the child’s injury unless the parents could have foreseen that injury would result to the child. If they could have foreseen injury, then they were negligent, and the effect of invoking the doctrine of sole proximate cause is to impute this negligence to the child contrary to the rule of substantive law.

The use of “foreseeability” as a working formula for causation is settled law, although it is an admitted illogical concept. It was adopted and we. are committed to that settled law in order to “avoid as far as ' possible the metaphysical and philosophical niceties in the age-old discussion of causation.” City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 670, 27 A.L.R. 927. Confessedly, logic is abandoned in favor of a more practical rule which generally serves very well.

But this is a case where a parent’s negligence may not be imputed. The parent’s failure to behave as an ordinary prudent person, including his foresight, is not a matter of inquiry because the substantive law prohibits imputation of negligence to an unreliant child.

If pure logic is to control, then foreseeability has no place in causation at all. If logic is not to control we should get in exchange for logic a simple workable rule. But when we inquire, in a case where the parent’s negligence is not imputable, whether that same parent could havé foreseen the result as an ordinary prudent person, we impose the element of negligence while vowing it is excused. The foreseeability rule was a device to simplify. When used in this case it complicates and confuses. Negligence is not a defense, and yet by definition it would be submitted to the jury by indirection under a pseudonym. Such a submission is an invitation to a jury to impute to the child the sub-standard act or omission of the parent — the very thing the law prohibits. That a parent’s negligence may not be imputed to the child would thus be reduced to a hollow and ineffective rule.

Having avoided the philosophical niceties relating to pure causation, we are now faced with the metaphysical niceties relating to the foreseeability which is defined into sole causation. In a case- of this kind, the submission, of sole causation, defined to include foreseeability on the part of the ordinary prudent person, is a confusion. To require foreseeableness in the ease where imputed negligence is prohibited means that confusion again overtakes the practicable rule. When this occurs, the rule ceases to be practicable and simple, and no reason .exists to disregard logic any further.

We have been cited to some cases in which, the parents’ failures were submitted as sole proximate cause. An examination of those cases fails to reveal that such issue was objected to or that the correctness of the submission was urged on appeal. Northern Texas Traction Co. v. Thetford, Tex.Civ.App., 28 S.W.2d 906, reversed Tex.Com.App., 44 S.W.2d 902; Southwestern Bell Telephone Co. v. Doell, Tex.Civ.App., 1 S.W.2d 501; Ross v. Haner, Tex.Civ.App., 244 S.W. 231; Id., Tex.Com.App., 258 S.W. 1036.

This matter was directly passed upon in the case of Terrell Wells Health Resort v. Severeid, Tex.Civ.App., 95 S.W.2d 526, and the issue of sole proximate cause in a case such as this was rejected and held improper. The court there held that the issue amounted to the imputation of negligence. We see no reason to depart from the rule as there announced. Accord, Kelley v. Texas & P. Ry. Co., Tex.Civ.App., 149 S.W. 349; Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64; Restatement 11, Torts, §§ 449, 452.

Nor do we think the damage issue which permitted recovery for future pain and mental anguish was improperly submitted by reason of any uncertainty of the medical testimony. A medical witness, completely qualified, described a fracture to plaintiff’s head as a depressed fracture of the skull which necessitated surgery for the removal of bone and dirt from the brain. On the second and third days after the operation, the child became rigid and spastic, making his movements and breathing difficult. At one point breathing entirely stopped. As late as the time of the trial, the plaintiff still hemorrhaged at the nose. His coordination was bad and his memory poor. The injury resulted in permanent scar tissue on the brain, which, according to the expert, “is likely to cause people to have convulsions or epileptic fits.” The word likely has been held to be sufficient to give that measure of certainty required for future damage. Fordyce v. Moore, Tex.Civ.App., 22 S.W. 235. We hold that convulsions and epileptic seizures are not dissociated with pain and mental anguish and are conditions which, under the evidence, will probably result from the brain injury. Dallas Railway & Terminal Co. v. Enloe, Tex.Civ.App., 225 S.W.2d 431; Mercer v. Evans, Tex.Civ.App., 173 S.W.2d 206; Harris v. Sadler, Tex.Civ.App., 55 S.W.2d 173. The doctor also testified: “The most likely result he would end up with would be a condition of spasticity. A recurrence of the same thing he had soon after the injury.” That testimony means that a condition of spasticity similar to that occurring soon after the injury is likely, in the superlative degree, to reoccur. It does not mean that it necessarily will occur, but the rule of reasonable probability and medical certainty does not require exact prophecy. For these reasons and the facts stated in connection with this point, we shall overrule the point as well as the point that the damages are excessive.

The judgment is affirmed.