Harford Agricultural & Breeders Ass'n v. Brown

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment recovered by the appellee-, Thomas J. Brown, against the appellant, the Harford Agricultural & Breeders’ Association, Inc., for alleged injuries to the appellee caused on September 27th, 1932, by being struck and knocked down by an automobile- driven by one Harold R. Dickey, while upon the appellant’s fair " ground or premises. The declaration alleges, that upon the, date mentioned, September 27th, 1932, the defendant was the owner of, and was in possession and control of, the, ground and premises upon which it conducted and operated a race track “whereon running races for horses” were held, and where the general public was invited to attend the races; that on the date- mentioned the plaintiff attended the races on the implied invitation of the defendant; that a place of entrance and exit for its patrons to its track was provided by the defendant, to the right of which, upon the defendant’s premises, there is what is known as the clubhouse- inclosure, in which, under certain conditions, owners were permitted to- park the-ir automobiles; that to the west or- southwest of the defendant’s property, and running parallel therewith, there is a state concrete road for the use of automobiles, and the, defendant, for the- use of its patrons, provided a cement walk or footway leading therefrom to the general entrance to the race- track, which footway ²⁶⁴ is used exclusively for pedestrian travel and “lies contiguous to the club* house enclosure and is separated therefrom by a high, substantial iron fence; that a gate in said iron fence is usually kept closed and locked, but at the conclusion of races each day the gate is unlocked by the defendant, and automobiles parked within the club house enclosure are invited and permitted * * * to* cross the said paved footway at right angles; that the plaintiff being upon the premises of the defendant upon its implied invitation, it was the duty of the defendant to use all reasonable care to) protect the plaintiff from injury. In disregard of its duty, while the plaintiff -x- -x- * ug^g. proper care and caution was leaving the grounds of the defendant, and was walking along and across the paved footway * * * the defendant negligently and carelessly permitted and invited an automobile being then and there operated by one H. R. Dickey to leave the club house enclosure * * * and to cross the paved footway provided for pedestrians whereon this plaintiff was then and there walking, and said automobile struck the plaintiff in the back, knocked him down, severely, painfully and permanently injuring him * * * causing him to spend large sums for medical treatment and nursing. * * * That the injuries sustained by him * * * were wholly due to’ the negligence and want of due care on the part of the defendant, its servants, agents and employees, and without any negligence or want of due care on the part of the plaintiff thereto contributing.” The case was tried by a jury, and at the conclusion of the plaintiff’s evidence the defendant offered a prayer, which was refused, asking the court to’ take the case from the jury because of a lack of legally sufficient evidence.

At the conclusion of the entire evidence, the prayer was again offered and refused, and judgment was rendered for the plaintiff. It is from that judgment that the appeal in this case was taken. To determine the correctness of the court’s ruling upon this prayer, it is necessary that we state quite fully the evidence in this case. ²⁶⁵ James P. Ross, the defendant’s, manager of the Havre de Grace race track, when called by the plaintiff, explained a drawing of the entrance to the race track and the approaches thereto, and pointed out thereon the state road leading to such entrance and the parking space to the west of the road, where automobiles other than those privileged to us© the club house inclosure were parked. He also pointed out the main entrance to the race track, the club house inclosure to the right of the footway to the entrance, and the guard posts along the state road in front of the entrance, which were erected to keep automobiles from making short turns in going down the walk to the roau.

This witness testified that the club house inclosure was covered with stone screening and used as. a parking place for guests having club house privileges, and was supervised by an employee of the. defendant association; that, after the races were over, the cars in the inclosure go out through the gate in the iron fence which separates the inclosure from the footway, and cross the footway at right angles to get to the cinder roads that lead to the highway at a point beyond the guard posts; that Pinkerton men “are employed by the company (the defendant) and are in charge of the gates, and he does not think a police officer is at the gate when it is open”; that an employee of the association opens the gate after the races in the club house parking space; and that this gate is the only one used as an exit from the club house area. Upon cross-examination, the witness stated that the concrete area was only reserved for pedestrians while the races were in progress and not after the races were over; and that for the last six or seven years, after the races were over, pedestrians leave by the main entrance as indicated and automobiles from the club house area by the gate indicated; that the first notice he had of this accident was when Mr. Fahey, the president (of the defendant company), notified him the day the papers were served on him, which was February 11th; that no one had ever made any claim or demand on the race track before this suit was filed. Thomas J. Brown, the plaintiff, who was seventy-four ²⁶⁶ years of age, testified: That he “had lived in Perryville, Cecil County, for the last six years and prior to that in Havre de Grace for eight years, and had lived next to the race track for a great many years, thirteen to be exact, and prior to that at Swan Creek, a mile and a half from Havre de Grace, all his life.” That he was at the Havre de Grace race track on September 26th, 1932; he rode out with a stranger, who parked his car on the James property on the west side of the state highway. He crossed the state highway and entered the race track by going through the main entrance heretofore described.

He remained at the races until they were over, and then left for home. “He travelled practically the same way as he went in, * * * and before he got to this gate, he looked to see if there were any automobiles. He didn’t see any and started out; he didn’t see anything at all. He was hit, and didn’t remember anything more until he was in the hospital.” That he was at the time walking on the concrete footway which led out to the state road, and that at the time he was struck he was in line with the gate leading from the parking inclosure; that he was walking diagonally across the concrete area heading for the posts next to the public highway, so that he might cross the road to the place where the car in which he had come was parked. He could not tell “what paid; of his body was struck as it happened SO' quick, but he was not struck in the face; he imagined it was around abo'ut the hips on the left side; but he does not remember anything and did not regain consciousness until he was at the hospital at Havre de Grace.” On cross-examination he testified that he had “been going 'regularly to the races at Havre de Grace ever since the track was built”; that the condition * * * has existed right along but had been improved”; that just before he was struck, he looked and didn’t see any automobiles coming, which was just before he got to the gate leading out of the parking space. * * * That the parking space was not alive with automobiles at the time; that there was not a solid line of cars coming out of this space; that' when he was on the. concrete space just before he got in line with the gate, he looked ²⁶⁷ to the left to see if any automobiles were coming, because that was the only way from which cars would come, that he didn’t see anything; that the space was level but it was too dark to' see two or three hundred yards, but he could see fifty yards, but would not say that distance was accurate.

That he didn’t see any automobiles at all either in the parking spaces or coming out. That he has no recollection of walking along a line of cars that were sometimes stopping and sometimes moving very slowly, as there were not any cars there.” On redirect examination the witness said it was about twilight, about 6.15 P. M.; that he knew from going regularly to the races that automobiles came out of this gate from the club house inclosure; “that from his experience at the race track he knows that there is generally a traffic man there to guide the traffic; * * * that as he walked along there leaving the track, he looked to see if any automobiles were coming and did not see any and he partly depended upon the officer being there to look out for pedestrians as they came out.” But on this occasion he saw no officer or any one directing traffic and that, so far as he knows, no other .people were around him; that he was practically alone. Dr. Steiner, who visited the plaintiff at the Havre de Grace Hospital, and who there attended Mr. Brown for the injuries ho received, testified that he frequently visited the races and had parked his car in the clubhouse inclosure. He said it was difficult to get out of there, and that you could only do so by driving very carefully, and you have to stop at frequent intervals not to run into pedestrians; that there is an officer at the gate to admit you and one to let you out.

He could not say there were two there, but he knew there was always one there. “That in driving a car the idea is to get to the main highway, and to drive a little ways and stop, and then to move forward a little more. That these were the usual conditions that existed at the race track, and that this condition existed on September 26th, 1932, to the best of his knowledge.” Reese M. Bowman, sheriff of Harford County, testified that in the evening after the races traffic through this section ²⁶⁸ where the accident happened is directed by a man in the Pinkerton uniform. He helps to park yonr car and helps you get out of there, and as sheriff he frequently came in contact with them (the Pinkertons). He does not think the state police have anything to do with the traffic until it comes out on the main highway.

To. that point the control and direction of the traffic is under the Pinkerton force. That there is only one attendant at the exit gate. He never heard of any one else being hurt there except Mr. Brown. Harold R. Dickey, called as a witness by the defendant, testified that he was a resident of Baltimore and that he attended the races at Havre de Grace on the afternoon of September 26th, 1932, going there by automobile; that with him was his wife, Mrs. Carey, and Mr. Dupuey, all of whom live in Baltimore. “They arrived at the race track about a quarter to two and parked his car in the club house enclosure.

They stayed until after the last race, when they went out, got in his machine, and drove out this gate.” -In doing so he had t© drive out this way (indicating) from in back of other machines, and then got out to the gate where one of the Pinkerton men was standing. The witness then went to the blackboard and “marked with an X the spot where the Pinkerton man was standing, and * * * marked with a double ‘X’ the place where the accident occurred * * *; that there were several cars in front of him, he does not know how many or how many were in back of him, as all of his time was taken up. in seeing what went on right in front of him. He did not look to the rear. That as he came to the gate, the man gave him a. signal to. come on, and he came out and had to. stop on this, concrete.

He stopped again at the edge of the concrete walk, and a little beyond this concrete way Mr. Brown walked right into the right front fender. That just prior to that his car had been standing still. That the distance between his car and the car in front of him was about the length of the pointer, which was •between eighteen or twenty inches. That traffic started to move, and he does not think the wheels of his car had made ²⁶⁹ one complete revolution when Mr. Brown came in contact with the fender.

That his car was. in first gear. That he saw several people standing there (indicating) and he did not know that a man had walked into his car. There wasn’t any jar of any kind. He saw people walking there and trying to cut through the traffic, and Mr. Dupuey called his attention to the man walking into the machine.

He immediately stopped; it didn't take a second because he was not going fast. That Mr. Brown was assisted up by one of the state officers, a sergeant, and Mr. Dupuey. That the other people kept, on going and no one stopped. That ho put Mr. Brown in his car and took him to the hospital in Havre de Grace. * * * That the nature of the roadway, where ho has indicated the accident happened, is made of railroad cinders.

That he saw the marks that, the cinders made on Mr. Brown’s face after the accident at the hospital.” On cross-examination, the witness testified that “from the point where he had marked on the plat where the Pinkerton officer waved him on to the point where his friend told him that, he had struck a man, he was going very slowly, his-wheels hardly turned and he stopped, stopped right at the edge