241 N.W. 519 | S.D. | 1932
This appeal is from a judgment on a verdict directed for defendant, respondent herein, and from the order denying plaintiff's motion for a new trial. Plaintiff, appellant herein, is the widow, and the administratrix of the estate, of Henry F. Endorf, deceased. Respondent Johnson is the owner of an amusement park at which he conducted automobile races on July 4, 1929. Endorf was killed by one of the racing cars. Appellant alleged, and the evidence showed, that the track was very dusty; that the fences, where there were any, outside and inside the track, were not such as to prevent spectators from going onto the track; that the seating facilities were inadequate; and that spectators crossed the track from its outer and its inner edge in order to find better points of vantage. It was alleged that, while Endorf *550 was crossing the track in an effort to find a suitable and safe place to view the races, he was struck by one of the racing cars, receiving injuries from which he died.
[1] Endorf, at the time of his death, was 48 years of age, was in full possession of his faculties, had been repeatedly at this amusement park, had been observing the three cars racing around the half-mile track in a ten-mile race for approximately five minutes, when, after the leading car or cars had passed, he placed himself on the track, ten feet from its inner rim in the path of the third racing car which was following the leading car or cars at a distance of approximately one hundred feet. He was struck by it and mortally injured. Endorf either had left the inner rim and moved ten feet nearer the median line of that fifty-foot track — as seems most probable from the evidence adduced — or he had left the outer rim of the track, and had arrived at a point ten feet from the inner rim when struck by the racing car.
In support of her contention that the question of Endorf's contributory negligence should have been submitted to the jury, appellant cites Ellingson v. World Amusement Service Ass'n,
That Endorf was negligent is clear. Appellant contends, however, that because of respondent's willful and wanton misconduct in the management, operation, and construction of his amusement park, respondent is liable notwithstanding Endorf's negligence. Appellant relies on the decision of this court in Carlson v. Johnke,
[2] If there is any language in the opinion in Carlson v. Johnke, supra, which might reasonably be interpreted to mean that this court had approved the doctrine of comparative negligence or that willful or wanton conduct is the same as gross negligence, it was not so intended and is now expressly repudiated. One who is properly chargeable with wanton conduct is not simply one who is more careless than one who is only guilty of negligence; his conduct must be such as to put him in the class with the willful doer of wrong. Atchison, etc., Ry. Co. v. Baker,
It is unnecessary in this opinion to restate the facts which, in Carlson v. Johnke,
[3] The evidence of wanton conduct on the part of Johnson being insufficient and Endorf's contributory negligence being clearly such as to constitute a valid defense to a claim for damages based on negligence, the learned trial judge committed no error in directing verdict for respondent.
The judgment and order appealed from are affirmed.
CAMPBELL, P.J., and POLLEY, ROBERTS, WARREN, and RUDOLPH, JJ., concur.