McWilliams v. Parham

160 S.E.2d 692 (1968)

273 N.C. 592

Henry McWILLIAMS v. George H. PARHAM, Jr.

No. 535.

Supreme Court of North Carolina.

May 1, 1968.

*694 Joyner & Howison By Henry S. Manning, Jr., Raleigh, for plaintiff, appellant.

Maupin, Taylor & Ellis, Raleigh, for defendant appellee.

BRANCH, Justice.

The sole question presented for decision on this appeal is: Did the trial court err in granting defendant's motion for involuntary nonsuit at the close of all the evidence? This single question presents for consideration whether there was evidence of actionable negligence on the part of defendant and whether as a matter of law plaintiff was contributorily negligent.

*695 This case has previously been before this Court on appeal from an order denying plaintiff's motion to strike the entire second and third further answers of defendant, and is reported in 269 N.C. 162, 152 S.E.2d 117.

The duty that one golf player owes to another in playing the game, which duty is equally applicable to a caddy in the performance of his duties, was considered in the case of Everett v. Goodwin, 201 N.C. 734, 161 S.E. 316, where Brogden, J., speaking for the Court, stated:

"* * * `The courts are generally in accord on the point that a golfer, when making a shot, must give a timely and adequate warning to any persons in the general direction of his drive.' * * * `A golf course is not usually considered a dangerous place, nor the playing of golf a hazardous undertaking. It is a matter of common knowledge that players are expected not to drive their balls without giving warning when within hitting distance of persons in the field of play, and that countless persons traverse golf courses the world over in reliance on that very general expectation.'"

The Virginia Court considered the rules of law relative to golf ball injuries in the case of Alexander v. Wrenn, 158 Va. 486, 164 S.E. 715. We quote from that case as follows:

"* * * it is the duty of a golf player to exercise ordinary care to prevent injury to others by a driven ball; that, before driving, it is his duty to give timely warning to persons unaware of his intention whom he knows, or in the exercise of ordinary care should have known, are in line, or so close to the line, of the intended flight of the ball that danger to them reasonably might be anticipated."

In Berry v. Howe, 34 Wash. 2d 403, 208 P.2d 1174, a case involving golf ball injuries to a caddy, the Court stated:

"In all of his conduct which might result in harm to the caddy the golfer must exercise reasonable and ordinary care under the circumstances, * * * Driven balls do not always travel in the straight course intended and frequently deflect to the right or left, and thus a rather extensive zone of danger may be created. * * * "It is the duty of a golf player in the exercise of ordinary care to give to a caddy timely warning of his intended drive if the caddy is not aware of such intention, and the player either knows or by the exercise of ordinary care under the existing circumstances should know of such unawareness. He must use ordinary care to observe whether a caddy is within the general direction of his drive, or otherwise within a zone of danger, if the ball should deviate from its intended course, and exercise ordinary care to see that he is adequately warned."

The general rule adopted in most jurisdictions (including North Carolina) is that it is the duty of a person hitting a golf ball to exercise ordinary care under existing circumstances for the safety of others, whether they be players, caddies, or spectators; he must give adequate and timely notice to persons who appear to be unaware of his intention to hit the ball when he knows, or by the exercise of ordinary care should know, that such persons are so close to the intended flight of the ball that danger to them might be reasonably anticipated. However, he is not an insurer of such persons, nor does such duty arise for the benefit of persons situate in a place where danger from the driven ball might not be reasonably anticipated. Everett v. Goodwin, supra; Toohey v. Webster, 97 N.J.L. 545, 117 A. 838; Page v. Unterreiner, Mo.App., 106 S.W.2d 528; Stober v. Embry, 243 Ky. 117, 47 S.W.2d 921; Miller v. Rollings, Fla., 56 So. 2d 137; Boynton v. Ryan, 3 Cir., 257 F.2d 70. Full and exhaustive notes relative to injuries on golf courses may be found in 138 A.L.R. 541, 82 A.L.R.2d 1183, and A.L.R.2d Later Case Service, beginning on page 509.

*696 Defendant introduced evidence that it was not customary to "holler fore" when teeing off on the thirteenth hole of Carolina Country Club, and that it was customary for a person teeing off on the thirteenth hole of the course to do so after the preceding players had cleared about 10 yards from the thirteenth green. He contends that such custom relieved him of the duty to warn plaintiff of his intention to drive the ball.

"* * * The weight of authority supports the view that since negligence is the failure to do that which an ordinarily prudent man would do, or the doing of that which an ordinarily prudent man would not do, under the same circumstances, an ordinary custom, while relevant and admissible in evidence on the issue of negligence, is not conclusive, especially where the custom is clearly a careless or dangerous one. What usually is done may be evidence of what ought to be done, but in the last analysis, what ought to be done is fixed according to the standard of the ordinarily prudent man, whether it is customary to comply with that standard or not." 38 Am.Jur., § 34, p. 680. "A custom which is local is binding only upon persons who have knowledge of it." 21 Am.Jur.2d, Customs and Usages, § 20, p. 694.

Here, defendant offered no evidence that he had knowledge of the customs which he seeks to rely upon, but negatived such knowledge by evidence that he had only played on the golf course on one other occasion. In any event, this custom could not obviate the requirement of reasonable and ordinary care.

It is common knowledge among players of the game and among those who enjoy it as spectators that good golfers, and occasionally even the best golfers, cannot alway control the line of flight of the golf ball. Hooks (curves to the left), slices (curves to the right) and other erratic shots, are common occurrences, and in the case of beginners or "duffers" they are more often the rule than the exception. It is equally well known, even among non-golfers, that the velocity of a driven golf ball may be so great as to cause it to become a dangerous missile.

In the instant case defendant, who had been playing golf for only six weeks, observed plaintiff walking diagonally from the path of the intended flight of the ball. According to defendant's own testimony, he gave no notice or warning of his intention to hit the ball until after the ball had been struck. Other witnesses heard the warning, but plaintiff testified that he heard no warning. The evidence of plaintiff and defendant was in conflict as to plaintiff's location in the rough at the time he was struck.

Considering the evidence in the light most favorable to plaintiff, and giving him the benefit of every reasonable inference which may be reasonably deduced from the evidence, as we must on motion to nonsuit (Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863), we hold that it was for the jury to determine whether defendant's conduct was such as to meet the test of ordinary care.

We next consider whether plaintiff was guilty of contributory negligence as a matter of law.

Appellee contends that plaintiff, an experienced caddy of full age, was contributorily negligent as a matter of law because he did not use his senses of sight and hearing to become aware that defendant was about to drive the ball, and thereby dispense with the necessity of warning by defendant.

It is true that if warning were timely given so that plaintiff heard it, or in the exercise of due care should have heard it, in time to avoid being struck, and plaintiff failed to take appropriate action to protect himself, he would have been guilty of *697 contributory negligence. Toohey v. Webster, supra.

Defendant offered evidence that he gave an audible warning after he struck the golf ball and that persons other than plaintiff heard the warning. Plaintiff testified that he heard no warning. Thus the timeliness of defendant's warning as bearing on plaintiff's contributory negligence became a question for the jury.

A player or caddy is entitled to assume that players in the party following him on a golf course will observe the rules and customs of the game. McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117; Everett v. Goodwin, supra.

There was evidence which would have justified the jury in finding that plaintiff could have seen defendant on the tee had he looked. Conversely, there was evidence which would have permitted the jury to find that plaintiff was unaware that defendant was an inexperienced golfer, that plaintiff was rightfully upon the golf course, and was walking in a direction so as to increase the distance between him and the intended line of flight of the ball; that plaintiff, being well acquainted with the rules of the game of golf, was entitled to assume that players following the party for whom he was caddying would observe the rules and customs of the game, requiring them to give warning of their intention to drive a golf ball in the vicinity of a person who does not appear to be aware of such intention.

Concerning his failure to look toward the thirteenth tee, plaintiff stated "I didn't look back because I didn't think anybody would hit a ball that close to the green, no one ever had."

It is a well recognized rule in this jurisdiction that unless plaintiff's evidence establishes facts necessary to show contributory negligence so clearly that no other reasonable conclusion can be drawn therefrom, nonsuit is not proper. The issue is ordinarily for the jury. Rouse v. Peterson, 261 N.C. 600, 135 S.E.2d 549; Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170.

The evidence would permit but not compel a jury to find that plaintiff in the exercise of due care should have been aware that defendant was about to drive the golf ball and should have taken appropriate action to avoid injury. Thus plaintiff's evidence did not establish contributory negligence on his part so as to justify the ruling of the trial court.

We hold that the trial court erred in granting defendant's motion for involuntary nonsuit.

Reversed.