Toohey v. Webster , 97 N.J.L. 545 ( 1922 )

The opinion of the court was delivered by

Ackerson, J.

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 age, while acting as a caddie on the golf course of the South Orange Field Club, and for the consequential damage sustained by his father as the result of such injury by reason of the boy being hit in the right eye by a golf ball driven by the defendant while playing on said course. The jury returned a verdict in favor of both plaintiffs, and from the judgment entered thereon defendant appeals upon two grounds, viz., the refusal of the trial judge to nonsuit the plaintiffs, and his refusal to direct a verdict in favor of the defendant.

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 handed him a driver for the fourth hole, and as this player started for the fourth tee, plaintiff started for the above mentioned hunker, opposite the third green and midway of the fairway of the fourth hole, and had taken two or three steps and was somewdiere near the edge of the third green, when he heard the word “fore” and was instantly hit in the right eye by the ball from defendant’s second shot.

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 called “fore” before delivering the stroke in question and just after looking ahead to see what the situation was, and that he did not see the plaintiff until after he, the defendant, had struck the ball, and that when he saw the ball going in plaintiff’s direction he called “fore” again very loud. On the other hand all the' other witnesses who were on the course testified that they saw the boy either on the third green or between it and the aforesaid bunker, as defendant made his shot, and three of them who were at or near the third green did not hear any call of “fore” or other warning until just as the plaintiff was struck. This raised an issue of fact as to whether adequate and timely warning was given .to the plaintiff and, therefore, the question of defendant’s negligence was properly left to the jury.

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 ball struck him, and in this he is supported by two other witnesses. Therefore, the question of contributory negligence was clearly for the j ury.

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.