Richard Stanley LANE
v.
EASTERN CAROLINA DRIVERS ASSOCIATION.
No. 31.
Supreme Court of North Carolina.
January 20, 1961.*740 Willard J. Moody, Portsmouth, Va., Killian Barwick and John H. Hall, Elizabeth City, for plaintiff, appellee.
LeRoy, Goodwin & Wells, Elizabeth City, for defendant, appellant.
BOBBITT, Justice.
Defendant's motion for judgment of nonsuit was properly overruled. Hence, we refrain from discussing the evidence presently before us except to the extent necessary to show the ground on which a new trial is awarded. McGinnis v. Robinson, 252 N.C. 574, 114 S.E.2d 365; Caudle v. Southern R. R., 242 N.C. 466, 88 S.E.2d 138.
Plaintiff, a patron, occupied the status of invitee. Defendant was not an insurer of plaintiff's safety. "The general rule is that the owner or operator of an automobile race track is charged with the duty of exercising reasonable care, under the circumstances present, for the safety of patrons, that is a care commensurate with the known or reasonably foreseeable danger." Williams v. Strickland, 251 N.C. 767, 112 S.E.2d 533, 537; 37 A.L.R.2d 393.
"If the need is obvious or experience shows that an automobile race of the character and in the place proposed requires, in order to afford reasonable protection to spectators, the erection of fences or similar barriers between the track and the places assigned to them, it becomes a part of the duty in exercising reasonable care for their safety to provide fences or barriers, the adequacy of which is dependent on the circumstances present, principally the custom of the business." 37 A.L.R. 2d 394; Williams v. Strickland, supra.
The Layden car was a specially constructed rear engine dragster. There was evidence from which diverse conclusions and inferences might be drawn as to whether the Layden car was so constructed that defendant, by the exercise of due care, could and should have reasonably foreseen that the driver would or might lose control thereof when operating at high speed, and as to whether defendant, upon proper inspection thereof, should have excluded the Layden car from participating in the fatal race. Under the court's instruction, as indicated below, the negligence of defendant was made to depend upon whether it failed to exercise due care to provide barriers reasonably sufficient to protect its patrons.
There was no evidence that any prior incident similar to that here considered had occurred on defendant's track. There was evidence that Layden had participated in such races on defendant's track since 1955.
Conflicting evidence was offered as to what protective barriers, if any, were customary or in use on similar drag race tracks. There was no evidence that facilities such as grandstands or bleachers were provided at any drag race track. From the evidence most favorable to plaintiff, diverse conclusions and inferences may be drawn as to whether any protective barrier referred to as in use on any similar track would have protected plaintiff from a car headed towards the spectator area at a speed of 120 miles per hour.
It appears plainly, from the evidence offered by both plaintiff and defendant, that the sole purpose of the fence was to keep spectators off the concrete strip, not to provide protection for spectators. If a racing car or wheel or other part thereof invaded the spectator area, the protection afforded by this fence was incidental and negligible.
As to negligence, the question was whether defendant breached its said legal duty. Here the inquiry was to determine whether defendant provided for its patrons such fence or other barrier as was reasonably necessary to protect them from known or foreseeable dangers. Since virtually *741 no protection was provided, the second inquiry was of major importance, namely, whether, assuming defendant had provided for the protection of its patrons such fence or other barrier as was reasonably necessary to protect them from known or foreseeable dangers, would such fences or barriers have protected plaintiff from a racing car headed into the spectator area at a speed of 120 miles per hour? If not, defendant's negligence in the respect indicated was not a proximate cause of plaintiff's injuries. The alleged negligence, to be actionable, must be so related to the injury that, but for such negligence, injury would not have occurred.
The importance of the element of proximate cause in this respect must be kept in mind in considering the assignment of error directed by defendant to this excerpt from the judge's charge:
"Now, gentlemen, if you are satisfied from the testimony and by the greater weight of the testimony that the defendant has been negligent, in failing to provide adequate, proper and reasonably safe premises for the spectators at their race and failed to exercise reasonable care for their safety, provide proper barriers for their protection, the adequacy of which was dependent upon the circumstances present, then and in that event, gentlemen, you would find the plaintiff to have carried the burden of proof of this case and answer that issue YES. If you are not so satisfied, you would answer it NO."
The foregoing is the court's final instruction to the jury relevant to the negligence issue. It will be observed that the element of proximate cause was inadvertently but entirely omitted.
Plaintiff cites the consolidated cases of Sparks v. Holland (Pardue v. Holland), 209 N.C. 705, 184 S.E. 552, 553, and similar cases, as authority for the well-established rule that the court's charge must be construed contextually as a whole and not disjointedly. In the cited case, the challenged instruction was as follows: "Now, gentlemen of the jury, if you find from the evidence and by its greater weight in this case that the plaintiff in each of these cases was injured by the negligence of the defendant, in each case you would answer the first issue Yes, that is, in the Sparks case and also in the Pardue case, you would answer the issue Yes." (Our italics.) However, immediately preceding this statement, the court fully instructed the jury as to the significance of proximate cause as an element of actionable negligence. A similar factual situation was the basis of decision in Gentry v. Southern Public Utilities Co., 185 N.C. 285, 117 S.E. 9.
Here, consideration of the charge as a whole discloses that the court, before reviewing at length the respective contentions of the parties, defined actionable negligence in general terms. In doing so, the court rightly included in the definition of proximate cause the element that it must be a cause without which the result would not have occurred. No attempt was made to apply this element of proximate cause to the factual situation in the manner indicated above. Under these circumstances, when the court, in the final instruction relating to the negligence issue, omitted entirely the element of proximate cause, we apprehend the jurors received the impression that, since no protective fence or barrier was provided, whether plaintiff would have been injured if defendant had provided a fence or barrier reasonably necessary to protect plaintiff from known or foreseeable dangers was of no importance in reaching their verdict.
Under the circumstances stated, the erroneous omission from the court's said final instruction of the element of proximate cause must be held sufficiently prejudicial to necessitate a new trial.
Mindful of the fact that the evidence at the next trial may be different in material *742 respects, we refrain from discussing, on the basis of evidence presently before us, questions presented by defendant's other assignments of error.
New trial.