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Provence v. Doolin





APPEAL from the Circuit Court of Madison County; the Hon. A.A. MATOESIAN, Judge, presiding. MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The defendants, who variously owned, leased, and operated the Tri-City Speedway and the automobile races held there, appeal from the judgment of the Circuit Court of Madison County awarding the plaintiff, Bruce Provence, damages for personal injuries incurred when he was struck by a race car. The defendants contend, among other things, that the plaintiff was contributorily negligent, assumed the risk of injury, and was bound by a release he executed discharging the defendants from any liability.

Tri-City Speedway is located in Granite City. It consists of two oval dirt tracks, a quarter mile track enclosed within a half-mile track.

Evidence at trial established that the front straightaway of the quarter-mile track was immediately inside of the front straightaway of the half-mile track. A grandstand faced the outside edge of the front straightaway of the half-mile track. Light poles were placed at roughly equal intervals around the inside perimeters of the two tracks. Dirt mounds about 5 or 6 feet high and 12 or 15 feet across at their bottoms surrounded the bases of these poles. The larger track was partially surrounded on the outside edge by a guardrail. There were no guardrails on the quarter mile track except for a rail about 25 feet long in front of the judges' stand, located on the inside edge of the front straightaway.

Two types of stock cars raced at Tri-City during 1973, at the time of the incident involved. "Hobby" or "sportsmen" cars, which raced on the quarter mile track, were prepared from vehicles manufactured from 1950 through 1966. The maximum amount permitted to be expended in preparing these cars was $300. The "late model" cars, which raced on the half-mile track, were vehicles manufactured from 1967 through 1973 with no limit on expenditures for preparation. The hobby cars were generally driven by less experienced or novice drivers.

The races on both tracks ran counterclockwise. The first turn was at the end of the front straightaway, in the northwest corner of the track. The second turn was at the beginning of the back "straight," as the straightaway area was denominated, in the southwest corner. The third turn was at the end of the back straight in the southeast corner. The fourth turn was at the northeast corner at the beginning of the front straight.

Upon entering the track prior to racing, tow vehicles, race cars, and trailers, if used, were parked across the center of the infield of the quarter-mile track. This was referred to as the "pit area." The late model cars generally parked next to one another in line facing the grandstand. Behind these were parked the hobby cars and tow vehicles. A surveyor's map indicated that the infield of the quarter mile track was 253 feet wide (the distance from the inside of the front straight across the infield to the inside of the back straight).

The tracks were watered prior to racing to keep down the dust. The cars would then run "hot laps" to pack the surface and prepare it for racing. The hobby cars on the quarter-mile track reached speeds of about 50 miles per hour.

Plaintiff was 25 years old at the time of his injury, on July 27, 1973. He had helped Terry Spaulding, who was 17, prepare a hobby car for the 1973 season. Spaulding drove the car, and plaintiff served as pit crewman during the race. The 1973 season was the plaintiff's first as a participant.

The plaintiff testified that upon arrival at the track gate, the participants would get out of the tow car, "sign the paper" (a form stating that the persons signing it released the defendants from any liability for injury in consideration of being permitted to enter), pay a $3 admission fee, and drive to the pit area. Al Krshul and another individual were the officials at the gate. There would often be a line of cars at the gate, with everyone in a rush to get in and the officials trying to get everybody through. The plaintiff thought that on his first night as a participant, he had had a conversation, apparently with an official, concerning the release form.

Plaintiff described the explanation he received as follows:

"* * * everybody that is present at the races has to sign this release, so that they can prove that you were present at the racetrack, if something would happen to you, an injury of any kind, so that their insurance would cover it. If you didn't sign this, you wouldn't be covered."

The plaintiff stated that he did not read the form because it had been explained to him. Neither he nor anyone else was given a copy of the form.

Plaintiff further testified that during the races pit crew members gave hand signals to their drivers to indicate the distance between the driver and a car in pursuit or to indicate whether it was better to run closer to the inside or outside edge of the track. On the quarter-mile track, the pit men customarily stood along the inside of the back straight to give signals. He normally stood next to a light pole mound to give signals and remained there for the entire race.

On the night of the accident, six or eight races had been run prior to intermission. Plaintiff testified that it rained during the intermission prior to the sportmen's feature event in which he was injured. It did not rain during this race, but the track appeared slick. Plaintiff stood next to a dirt mound near the third turn at the end of the back straight. Prior to the incident in which he was injured there was an accident or spin out, and the race was stopped for several minutes. At this time, he went out to where Terry Spaulding had stopped the car on the track and tried to wipe some mud off the windshield.

He testified that after the race began again, he moved away from the dirt mound to get a view of the second turn where the cars were having some difficulty handling because of the condition of the track. He testified that he walked away from the mound and proceeded to the northwest, away from the third turn. He intended to see if there was an area where Spaulding might be able to handle the car better as he came off the second turn.

Plaintiff described his actions immediately before his injury as follows:

"Well, I was just walking back, looking in the general direction of the second turn, and I hadn't located Terry's car, so I didn't — didn't really know where he was, and then something just caught my attention, and I turned around, and the car that struck me was coming at me — toward me."

He tried to run but the car struck him and dragged him underneath, seriously injuring him. He estimated that he was about halfway between the edge of the track and the cars parked in the pit area of the infield when he was struck.

On cross-examination, plaintiff testified that he had participated in races at Tri-City Speedway on about 12 occasions prior to the date of his injury. He recognized that the sport was hazardous, especially to participants. Numerous times before the night of the accident he had seen cars lose control and go off the track to the outside or into the infield before they regained control. He knew that generally the hobby car drivers did not have much experience and that Terry Spaulding was a novice driver.

For the driver to see his signals, plaintiff had to lean toward the track from his position next to the mound. The edge of the mound reached almost to the inside edge of the track. In leaning to give signals, he was about 4 feet from the track.

He admitted that in taking his position next to the mound, he had considered the possibility that a car might very well leave the track and come into the infield at a high rate of speed. He was attempting to gain some measure of protection by standing near the mound, but he realized that he was in a hazardous position. He had heard announcements on the track's public address system instructing participants to stay off the mounds. He understood these announcements to mean that the track operators just did not want anyone near the edge of the track. Plaintiff also acknowledged that in walking away from his mound he had been in an even more exposed position than next to the mound. Although plaintiff was looking in the general direction of the collision between the cars of Terry Spaulding and Dennis Colletti that resulted in Colletti's car going out of control and striking plaintiff, he did not recall seeing this collision. Finally, he acknowledged that his participation was entirely voluntary and that he had been aware that the track was slippery before the race started.

Wilbur Spaulding, Terry Spaulding's father and a racing driver of long experience, testified on plaintiff's behalf. He was driving a late model car on the night of plaintiff's injury. He testified that during the "hot laps" prior to racing it began to sprinkle lightly. The cars were throwing loose track surface onto the windshield of his car, and he pulled off the track before the hot laps were completed. It "sprinkled" again "rather heavily" prior to the sportsmen's feature race in which plaintiff was injured. However, he did not recall it raining during this event. After it, a downpour occurred, and the late model feature was cancelled.

Wilbur Spaulding remembered seeing his son running on the track. He stated that the track was "snotty," i.e., very slick, and that Terry's car was "very loose." He discussed the condition of the track with Bob Mueller, apparently prior to the plaintiff's injury. Mueller was the official with the final decision on whether to cancel racing. Spaulding testified that he suggested that racing be terminated. However, the sportsmen's feature was allowed to run. Mueller later testified that he talked to Spaulding during the intermission prior to the sportsmen's feature, but that Spaulding had merely looked up at the sky and suggested that they had better get the races going. Mueller said that it was not raining at the time and that Spaulding had made no reference to the condition of the ...

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