McLeod Store v. Vinson, By, Etc.

281 S.W. 799, 213 Ky. 667, 1926 Ky. LEXIS 591

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 9, 1926
• Status: Published

Opinion

Opinion of the Court by

Judge McCandless

Reversing.

The appellant owns and conducts a large department store in Madisonville, a city of seven or eight thousand people. On the 13th of April, 1923, it inserted in an afternoon paper published in that city an elaborate advertisement announcing a guinea race to take place in front of its store on the following Saturday morning at ten o’clock. It was explained that the guineas were to be caught without being injured; that each one would be tagged and numbered and that the successful participants were severally to receive the fowl and a prize ranging in value from $2.00 to $7.00. At the time specified a large crowd assembled on the side walk and street in front of the store, and in the courthouse yard opposite. A member of the firm and three employees carried the guineas to the roof of the building and announced the rules of the race through a megaphone. The guineas were bedecked with ribbons and presented a gala appearance. "When released some of them flew downward and lit on telephone wires above the pavement. These were dislodged and flew to the pavement in the crowd below some little distance apart, .and in the chase to catch them a scramble ensued. In one instance .a man was pressed through a plate glass window into the store building. In another plaintiff was injured. He was a youth, lacking one month of being seventeen years of age, and apparently possessed of ordinary intelligence and physique. He had come down town to mail some letters, and learning of the race, went over to see it, stopping in the courthouse yard, opposite the building. When the guineas were released he went through the crowd to the pavement in front of the store. The guinea last mentioned lighted a short distance from him and be endeavored to catch it, and together with other boys and perhaps men joined in the chas.e rip the pavement. When within catching distance, he either stopped to catch it and was tripped or stumbled and fell to the pavement, six or eight others falling upon him, breaking his leg. When extricated he was carried to the hospital. The fracture was serious and the surgeons experienced great difficulty in setting the limb, and it was confined in a plaster cast for several months during which time he suffered greatly, and the usefulness of his limb is greatly impaired. In a suit for personal injuries he recovered a verdict for $5,000.00, from which this appeal results.

Without deciding the question, we may assume that an excited crowd chasing guineas for a series of prizes upon a congested city street would obstruct the street and cause inconvenience and some danger to travellers, and that this would render the one causing such commotion liable |o a person exercising due care in tbe proper nse of tbe street^ for any injury inflicted upon bim by tbe racers. It may also be assumed that plaintiff was not guilty of contributory negligence per,se, while engaged in tbe race. But a serious question to be considered is whether under tbe facts stated, it should be held as a matter of law that be assumed tbe risks ordinarily attendant upon the race in which be entered. In this be was a voluntary partici-, pant. There was no danger whatever to bim. when standing in tbe courthouse yard,(and aside from joining in tbe race be bad no occasion to go upon tbe street or pavement.) The anticipated danger was as obvious to him as it was to appellant. While not an adult, be was practically 17 years of age, of ordinary intelligence and perfectly able to determine tbe risks ordinarily incident to such games. An ordinary boy of that age is practically as well advised as to tbe hazards of baseball, basketball, football, foot races and other games of skill and endurance as is an adult, and if injured while voluntarily engaged therein, stands on an entirely different footing from an infant of tender years, or from one who is injured while lawfully and properly using tbe highway.

As has been well said:

“Assumption of risk is in effect a waiver of defects and dangers and a consent on tbe part of tbe employe to assume them,, no matter whether be be careful or negligent in bis conduct. This consent is held to take away tbe injurious character of defendant’s act and is bottomed on the old maxim, ‘Volenti non fit injuria—that to which a party assents is no wrong.' In such cases tbe injured party may at tbe time be in tbe exercise of all tbe care which tbe law requires, and still have no right of recovery.” 'C., N. O. & T. P. R. R. v. Golston, 156 Ky. 410.

“One who knowing and appreciating a danger, voluntarily assumes tbe risk of it, has no cause of complaint against another who is primarily responsible for tbe existence of tbe danger. As between tbe two, this voluntary assumption of tbe risk absolves the other from any particular duty to bim in that respect, and leaves each to take sucb chances as exist in the situation, without a right to claim anything from tbe other. In sucb a case there is no actionable negligence on tbe part of bim who pri marily is responsible for tbe danger. O ’Maley v. S. Boston Gas Light Co., 32 N. E. 1119. See also Pollock on Torts 138-144; Burdick on Torts 3rd Ed. page 93; Scanlan v. Weger, 31 N. E. 642; Blakey v. White Star Line, 154 Mich. 635; Winson’s Admr. v. City of Henderson, 179 Ky. 220; Johnson v. City of New York, 78 N. E. 715; Fitzgerald v. Conn. River Paper Co., 29 N. E. 465.

“While usually applied to cases between master and servant, this defense is not restricted to cases arising by reason of such relation.

“In view of the fact ¡that the doctrine of assumed risk is not based entirely in contract, but grows out of the application of the maxim, ‘ Volenti non fit injuria,’ it is well settled that independently-of the relation of master and servant, there may be a voluntary assumption of the risk of a known danger which will debar one from recovering -compensation in case of injury, even though he was in the exercise of due care. Standard Oil Co. v. Titus, 187 Ky. 560, and cases 6ited.”

As stated above appellee suffered serious injuries and his condition excites the pity and sympathy of anyone reading the record, but under the authorities stated, supra, it is clear that in entering the race he assumed the ordinary risks incident thereto and is thereby barred of recovery in this action.

Wherefore, judgment is reversed and cause remanded for proceedings consistent with this opinion.