(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' *550this suit; this caddie was only thirteen years old at the time and had been caddying about three years; he was a regular caddie on the course and was accustomed to be on the course •from eight a. m., not only Saturdays and Sundays, but other days, and on Saturdays and Sundays walked over the course four or five times a day; his testimony showed also that he was thoroughly familiar with the course and its peculiarities and dangers, and that players on the fourth tee would not pay any attention to the people on the other tees while playing this hole. He also testified that he knew someone was playing on the fourth hole when his party was playing the third, for there had been a threesome playing ahead of them at every hole;- after his employer had holed out he took the driver from his bag and handed it to him, and then started to walk toward the bunker on the fourth fairway, and had taken about three steps off the green when he heard a cry of “fore” and was hit in the eye by a ball; he did not see the defendant or his party playing on the fourth hole; he was standing with his back to defendant and the other players on the fourth hole; he heard no warning cry of “fore” except just as he was hit, and he saw the defendant for the first time just after he was hit. His companion caddie testified that at the time of the accident he was at the bunker laying down his bag; he heard someone shout “fore” from the direction of the fourth t-ee and heard the plaintiff shout and he turned around; the plaintiff was fust about three steps of the green.
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 *551loudly as lie could, and the plaintiff testified that he heard this just as he was struck.
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 *552in Pennsylvania, “a few years ago” — lie does not give us the citation — where a boy was a spectator at a polo game across a road from where the game was being played; the ball did not go out of the field, but the players, in order to reach it, rushed towards the side, and one of the horses took the bit in his mouth and ran across the road and struck the boy. The facts in this case are not parallel with the case at bar; to make it so, the boy would have taken several steps-within the bounds of the field without looking, and been struck by the ball hit by a player within the bounds of the field, while the boy was a trespasser.
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 * * *.”
*553In Runyon v. Central Railroad of New Jersey, 25 N. J. L. 556, it is held:
“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, *554is a trespasser who goes on the fairway; the plaintiff in this case was not an invitee and had no right on the fairway at the time, and as soon as he stepped from the green to the fairway he was a trespasser.
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.