97 N.J.L. 545 | N.J. | 1922
Lead Opinion
The opinion of the court was delivered by
This action was brought in the Essex County Circuit Court to recover damages for personal injuries sustained hy Cornelius Toohey, a hoy thirteen years of
It appears from the testimony to be uncontradicted that the golf course in question is cramped for space, with the result that some of the holes are unusually close together, and this is particularly true of the third and fourth holes. Both run in the same general direction. The third green is one hundred and fifty-nine yards from the third tee, and the fourth green is two hundred and five yards from the fourth tee, and the third putting green is almost opposite a midway bunker on the fairway of the fourth hole, and this bunker is only about eight feet from the nearest edge of the third green, so that players holding out on the third green have to walk back almost in the line of fire of the fourth hole, a hundred yards or so to the fourth tee, and their caddies inevitably walk directly across to the back of this bunker on the fourth fairway, opposite the third green, so as to watch and be ready when their players drive from the fourth tee.
At the time of the accident the defendant wras playing in a threesome on the fourth hole, and the plaintiff, Cornelius Toohey (who, for the purpose of convenience, will be referred to hereafter as the plaintiff), was caddjdng for a player who was engaged in a twosome at the third green. The defendant ¡had topped his ball on his drive from the fourth tee and at the same time sliced his drive so that the-ball landed in the rough, decidedly to the left, at about fifty yards, so far, in fact, that the jury might properly find that he was obliged to play practically over the third green, or very near thereto, in order to aim for the fourth green. As he was about to make his second shot the players on the third green had just holed out and the plaintiff took his player’s putter and
Defendant rests his argument for reversal upon three points, viz., that the defendant was not negligent; that the plaintiff was guilty of contributory negligence and that the plaintiff assumed the risk of being struck by a golf ball.
In determining whether the defendant was negligent we must bear in mind that the course is cramped, there being only about eight feet between the edge of the third green and the midway bunker on the fourth fairway; that defendant at the time of making the stroke in question was in the rough to the left of the fourth fairway and in the rear of the plaintiff, at a distance variously estimated at from thirty-five to seventy-five yards away. The defendant was endeavoring to get to the fourth hole, and there was competent evidence from ivhich the jury might properly find that the third green ivas between him and the fourth green, and one of defendant’s witnesses testified that the plaintiff was not more than four or five feet- to the left of a direct line from defendant’s position to the fourth green and that plaintiff was in the line of defendant’s play, and both players in the twosome were still on the third green. With these people out in front of him and with the knowledge that his ball might deviate from the intended course, defendant attempted a shot in the direction of the fourth hole, intending to loft his ball over the bunker on the fourth faiiway and over the heads o/ all who might be between him and the bunker; but instead of a lofted shot the ball carried low and curved! to the left. Under such circumstances the defendant was under a duty to use reasonable care before delivering his stroke, to observe whether there were any persons in the general direction of his drive who might be endangered thereby, and if so, to see that they wrere adequately warned. Defendant testified that he
We have next to consider whether the boy was guilty of contributory negligence. He was thirteen years of age at the time of the accident and was rightfully on the golf course and in the exercise of a duty which, required him to be where he ■was at that time. The defendant,, as already stated, was not on the fourth tee when he made the shot in question, but was in the rough to the left of and at an angle to the fairway of the fourth hole, and in the rear of the plaintiff at a distance variously estimated at from thirty-five to seventy-five yards away, and under such circumstances we think that the boy had a right to expect that the defendant would not attempt to drive his golf ball so close to the direction in which he, the plaintiff, was proceeding as to put him in danger, without giving him some audible warning in time for him to protect himself., If warning was given so that the boy heard it or should have heard it in the exercise of due care under the circumstances then existing, in time to avoid being hit, then the accident was partly at least the result of his own negligence; but if no warning was given, or was not given in time, or was given in such a way that the plaintiff did not hear it and would not have heard it by the exercise of reasonable care, then it -was at least a question for the jury to say whether the plaintiff was negligent. As already related, the plaintiff testified that he heard no warning until just as the
This brings us to the remaining question, as to whether the plaintiff assumed the risk of being struck by a golf ball while acting as a caddie on the golf course.
Having already decided that it was the duty of the defendant to give audible and timely warning of his intended play, it naturally follows that if the defendant failed to give this warning in a proper manner before making his shot he was guilty of a breach of duty and it cannot be seriously contended that under such circumstances the plaintiff assumed, as a matter of law, the risk of injury resulting from the defendant’s failure to perform a duty upon which the plaintiff had the right to rely. In such a situation the question of the assumption of risk was for the jury. Albanese v. Central Railroad of New Jersey, 70 N. J. L. 241.
The judgment will be affirmed.
Dissenting Opinion
(dissenting). The clear and undisputed facts from the testimony are as follows:
The third hole of the golf course of the South Orange Eield Club is one hundred and fifty-nine yards long and approaches the fourth hole from the left; the fourth hole is two hundred and five yards long and has a bunker across the fairway at about the middle, and the green of the third hole is about opposite this brrnker — to the left of it — and practically adjoins the fairway of the fourth hole.
On September 21st, 1919, the defendant, with two friends, was playing in a threesome; he was an experienced player, having played for more than twenty years; he was the last to drive from the fourth tee and topped his, ball, which was driven about sixty j’ards in the rough, a little to the left of the centre line of the fairway and about forty-five yards from the third green.
A twosome had just holed out on the third green, one of whom was the employer of the caddie, who is the plaintiff in'
Mr. Mittlesdorf, who was the partner of Mr. Lentz, for whom the plaintiff was caddying, testified that the plaintiff at the time he was hit was in between the third green and the bunker on the fourth fairway.
The defendant testified that just before he took his second shot from the rough, he looked up and saw no one in his line of play on the fairway to the fourth hole except a few caddies at the end of the bunker; he then looked down to address' his ball, and after striking it, he looked up and saw a boy, who proved to be the plaintiff, deliberately walking across the fairway to the line of flight of his ball; he. called “fore” as
The defendant also testified that before he addressed his ball he called “fore,” and this is corroborated by the testimony of his two companions, but the plaintiff and his companion caddie and another witness testified that they did not hear this preliminary cry of “fore.” Up to this point the facts are clear and undisputed. It has been held in this court that when an engineer and fireman on a locomotive testify that the whistle was blown and bell rung while approaching a crossing, and others testify that they heard no such signals, it is a question for the jnry to decide, and this would seem to imply that the facts in this case as to the calling of “fore” before addressing the ball, would also be for the jury. But I dc not base my dissent on that ground. I base it upon the ground that the plaintiff assumed the risk of the inj ury which he sustained with full knowledge on his part of the character of the risk; that he was guilty of contributory negligence and was a trespasser on the fairway of a hole which his employer was not playing at the time.
Although the plaintiff was of tender 3>ears, his experience on the links, as shown by his testimony, fitted him to understand the risks of the game. There are certain risks which a caddie does not assume; we have heard of the player who, in a fit of rage after a bad shot, has thrown his club away in disgust without regard to the safety of anyone standing near him; this is not a risk a caddie assumed, hut he does assume the risk of injuries incident to the playing of the game, and it is in his knowledge that the game is played with hard balls which are driven»with great speed for varying distances and in unexpected directions, not always within the control of the plaY’er.
Although the game of golf has been played for many years by hundreds of thousands of our citizens, serious accidents have been so few that there is very little in the books to help the court. Other games where a hard hall is propelled with great speed by a wooden club are polo and baseball. The judge below, upon the motion for a nonsuit, speaks of a ease
A similar case in a baseball game would be when a spectator, standing near the line from third base to the home plate, deliberately walked on the diamond as the batter was ready to strike, and was hit by the batted ball. He would also be a trespasser, and would certainly be guilty of negligence, especially if he did not take ordinary care to look around.
In the case of Central Railroad of New Jersey v. Isaac Moore, 24 N. J. L. 824, decided in this court, it is held: “A plaintiff suing for an injury, caused by the negligence of the defendant, will not be entitled to recover, if his own negligence contributed to the injury in such a way that if he had been guilty of no negligence, he would have received no injury by that of the defendant.
“The law does not in such case require of the plaintiff the greatest possible caution. The caution required is the ordinary care which a prudent person would take under such circumstances. * * * More vigilance and care are required in crossing a railroad track traveled by trains of a high, uncontrollable rate of speed than in crossing an ordinary highway.
“Where the facts are clear and undisputed, and show a want of ordinary care on the part of the plaintiff, the question is for the court to decide.
“Where the evidence of the plaintiff shows, without contradiction, a want of ordinary care on his part, it is the duty of the court when requested to order him to be nonsuit * * *.”
“If by the exercise of ordinary skill and care the plaintiff could have avoided the injury, or if his conduct contributed to produce it, he is not entitled to recover, even though the defendants were also guilty of negligence,” citing Moore v. Central Railroad of New Jersey, 24 N. J. L. 268.
In the case at bar the facts are clear and undisputed showing a want of ordinary care on the part of the plaintiff. He had had three years of experience; he knew that someone was playing on the fourth hole when his party was playing the third; after giving his employer his driver he could have followed him along the path to the fourth tee in safety, but he preferred to save that distance and walked across a known danger spot to reach the safety of a bunker on the fairway of a hole which his employer was not playing and on which he had no right to be; he was not in any sense an invitee, but was a trespasser until his own party began to play from the fourth tee. He did not look to see if there was any danger; if he had looked to the fourth tee, as was his duty to protect himself, he could not have failed to see the defendant with his two companions standing in a direct line between him and the fourth tee and only forty-five yards away; he was standing with his back to the defendant and the other players on the fourth hole; he was in a safe place when the defendant looked down to address his ball, for he testifies that he had taken three steps off the green when he was hit, and the time consumed by defendant in addressing his ball, bringing the club back, coming down with the club and the time consumed by the ball in its flight, was much more than was necessary for him to take these three steps; his companion caddie also testified that plaintiff wras just about three steps off the green when he wfas hit, and the employer of his fellow-caddie testified that at the time he was hit he was in between the third green and the bunker on the fourth fairway.
When a hole is in play everyone, except the players and their caddies and the players in front who are out of range,
In the. Runyon case above cited, the plaintiff, without looking or paying attention, went upon the railroad track in front of a swiftly approaching train. In the case at bar the plaintiff, knowing it to be a dangerous place and that players were behind him, without looking, walked into the line of play where a golf ball was likely to pass at great speed and could not be stopped.
The judge below erred in refusing to- direct a verdict for the defendant on the ground of assumption of risk and contributory negligence, and the judgment should be reversed.
For affirmance — The Chancellor, Ciiiee Justice, Swayze, Trenchaed, Paeker, Bergen, Minturn, Black, Katzenbach, White, Gardner, Aokerson, Van Buskirk, JJ. 13.
For reversal — Hepi>enheimer, Williams, JJ. 2.