Midkiff v. National Ass'n for Stock Car Auto Racing

82 S.E.2d 417 (1954)

240 N.C. 470

MIDKIFF v. NATIONAL ASS'N FOR STOCK CAR AUTO RACING, Inc. et al.

No. 744.

Supreme Court of North Carolina.

June 4, 1954.

Thos. C. Carter, Burlington, and Long & Ross, Graham, for plaintiff, appellee.

Long, Ridge, Harris & Walker, Graham, for defendant, appellants.

JOHNSON, Justice.

The complaint alleges in substance these ultimate facts: (1) that the intestate, as one of the competitors in a stock car automobile race held on a track near Raleigh, North Carolina, 19 September, 1953, collided with a dead car upon the track a few seconds after the beginning of the race and was killed in the collision; (2) that the individual defendants, as officers, *418 agents, and servants of the corporate defendants, were supervising and directing the race which was being promoted jointly by the corporate defendants; and (3) that the intestate's death was proximately caused by the joint and concurrent negligence of the defendants in that they, "acting in concert," started the race when they knew, or in the exercise of due care should have known, the track was in an unsafe condition as a result of one or more dead cars being left thereon following the test runs made immediately before the race, the dead cars being out of sight of the competitors starting the race who were without knowledge, or means of knowledge, that the track was in such unsafe condition.

These allegations, when liberally construed in favor of the plaintiff, as is the rule on demurrer, are sufficient to state a cause of action against the defendants on the theory of concurrent negligence. Bumgardner v. Allison Fence Co., 236 N.C. 698, 74 S.E.2d 32; Bumgardner v. Allison, 238 N.C. 621, 78 S.E.2d 752; Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373. See also Glazener v. Safety Transit Lines, 196 N.C. 504, 146 S.E. 134, and 38 Am.Jur., Negligence, § 63.

The decisions cited and relied on by the defendants are distinguishable. In the case of Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193, it was alleged merely that the plaintiff truck driver, employee of the defendants, was injured in delivering a truckload of crushed stone or gravel, on a stock pile when the stock pile which was hollow underneath caved in. In that case there was no allegation in respect to how, when, or under what circumstances the stock pile came to be hollow underneath, nor was there allegation that the stock pile was under the control of the defendants, nor that the plaintiff did not have the same knowledge, or means of knowledge, of the danger as did the defendants. Here, it is alleged that the race track was under the control of the defendants, who, acting in concert, were conducting the race, and that they started the race with the track in an unsafe condition as a result of one or more dead cars being left thereon after the trial runs immediately before the race, without the knowledge of the competitors, but with defendants being chargeable with notice thereof. These allegations clearly distinguish the instant case from Shives v. Sample, supra.

The question whether the defendants are entitled to have the plaintiff's allegations of negligence made more definite and certain under the procedure authorized by G.S. § 1-153 is not presented by this record.

Also, it would seem that the defendants' argument based on the doctrine of assumption of risk is premature and untenable. Ordinarily, assumption of risk is a matter of defense which must be set up by answer rather than demurrer. Dorsett v. Clement-Ross Mfg. Co., 131 N.C. 254, 42 S.E. 612; Hubbard v. Southern R. Co., 203 N.C. 675, 166 S.E. 802. See also 65 C.J.S., Negligence, §§ 192 and 197 (b).

The defendants' contention that the complaint is demurrable for failure of the plaintiff administrator to allege specifically that he brings this action in his representative capacity seems to be without merit. It is alleged that plaintiff "is the duly qualified and acting Administrator of the estate of Jesse Midkiff, deceased, having been duly appointed by the Clerk of the Superior Court of Alamance County, North Carolina." These allegations suffice to overcome the defendants' demurrer directed to the question of "defect of parties plaintiff."

The judgment below is

Affirmed.