*1 Jerry Schmidt, appellee, al., et v. Kenneth Orton
appellants.
Hеaley, Burchard' and Douglas L. Healey, Kluender, for appellants.
Con Dalton, M. of Marti, Keating Bruckner, O’Gara & Keating, appellee.
Heard J., Spencer, White, Smith, Boslaugh, and Clinton, JJ. McCown, Newton, Boslaugh, J. The plaintiff, Jerry Schmidt, injured when struck - a golf ball at Pаrk Holmes Public Golf Course in
Lincoln, on June Nebraska, 1970. The returned a verdict $8,500 amount both defend- ants. issue They appeal. is whether is sufficient the judgment sustain against one or both defendаnts. plaintiff and the Kenneth Orton were
playing with a had commenced foursome which p.m. at Udo Jansen around 12:30 The defendant immediately with a foursome happened hole fоursome. The accident *2 tiff’s length. fairway par yards The 4 in which a hole, 378 generally curves from the tee box but runs south green. the west near the plaintiff’s the 13th tee landed
The drive rough pinе yards approximately 180 near some trees searching plaintiff for the tee. The wаs south of foursome reached tee. ball when the Jansen plaintiff nearby helping look for his ball. Orton was plaintiff’s players in foursome were The other two spent green. After Ortоn farther toward the south looking plaintiff’s 2 ball he for the or 3 minutes through. play foursome Jansеn player to drive from the Jansen foursome The first in Londoner’s ball Londoner. tee was 13th Carroll opposite fairway tree in the area where landed in the searching plaintiff for his second ball. was player 13th tee was Jansen. Before from the to drive green driving Jansen looked toward ball, searching appeared plaintiff for saw gave warning rough. no Jansen ball driving appeared good to be hit, drive His the ball. right to toward the areа veered but then at first, looking plaintiff his ball. When was where to the he veer shouted his drive saw Jansen “Fore.” not plaintiff aware a ball testified was coming him until he heard toward
was plaintiff “got around, turned Jansen.. it ball when was the air (glance)” blance nearby. away, yards a fir tree and ran behind about 100 through plaintiff the tree and struck came The ball injuring seriously. eye him left near his signaling the after Jansen four- testified Orton yards through, to within play he walked some plаintiff foursome, “told” him the them would About a later Orton looked minute up plaintiff walking fairway. towаrd the saw the Jerry, hitting.” yelled: Orton then “Wait, warning, received no indication, or notification frоm Orton that the Jansen foursome had been waved jury upon
The case was submitted to the
аllegations
negligent
tiff’s
warn the
Jansen foursome
through;
and that
Jansen was
to warn the
intention
drivе
allegations
assumption
The defendants’
of risk and
were also submitted to the
determining
prеsented ques-
whether the evidence
tions for the
the defendants,
must be considered in the
mоst favorable to the
plaintiff. Every controverted fact must be resolved
*3
every
favor and he
must have the benefit of
in-
may reasonably
ference that
be drawn from the evidеnce.
general
adopted
jurisdictions
rule
most
is that
person hitting
golf
ordinary
ball must exerсise
care
safety
the
under
circumstances for the
of others. He
adequate
givе
timely
persons
must
notice
to
appear to
of his
be unaware
intention to hit the ball
ordinary
or
knows,
the exercise
when
of
care
persons
know, that such
should
are so close to
in-
the
flight
danger
might
of the ball
that
tended
to them
anticipated.
reasonаbly McWilliams v. Parham, 273
2d
See,
N.
Meding,
160 S. E.
692.
592,
also,
Robinson v.
578,
2d 272,
52 Del.
163 A.
82 A. L. R.
1176;
2d
Wrenn,
486,
v.
158 Va.
164 S. E.
Alexander
715. Miller
Rollings (Fla.),
warning to the of his intention to drive thе the evidence is When viewed most plaintiff, the to sustain it is favorable the sufficient judgment against as negligent in jury
As to the could find he was Orton, signaled he had that warn circumstances Jansen fоursome to might different such that minds draw were reasonable the evidence as conclusions and inferences negligence negligence Orton and the degree one of compared and the thereof when a case issues such with the other. Lewis, v. Maxwell must be submittеd 119. 186 N. W. 2d Neb. presented questions conclude
We judgment must defendants and both be affirmed.
Affirmed. Spencer, J., dissenting. waiting golf players, resрectfully
I dissent. When through by signaled member of on tee, reasonably group preceding еx- can so, and do group pect players preceding are con- protеct approach themselves will their scious of players through have their drives. membеr every to believe group group previous members has warned all approаch. of their plaintiff twice told following group A failure on the injured person pay to hear or attention of the impose should not circumstances under such coming through. players
liability On this record on finding understand cannot I