Strand v. Conner

[474]

SHEPARD, J.

This is an appeal by plaintiff from a judgment of nonsuit in a personal injury action.

Facts

The facts are undisputed. At about noon on August 23, 1959, on the Willowick Public Golf Course in Santa Ana, California, the vision was clear, although there may have been a slight overcast. Plaintiff and defendant were then and there playing golf in separate foursomes on holes three and four, of which the fairways were parallel and adjacent but on which the play was in opposite directions. The line between the two fairways was marked by a double row of small trees but there is no evidence of the width of the rough. Plaintiff had been playing golf about once a week for 45 years but this was his first play on this course. He was 69 years of age. There is no direct evidence of the condition of his hearing. It was apparently normal. The same is true of his eyesight. Defendant had been playing golf 31 years, had had some previous play on this course and his hearing was apparently normal. His right eye vision was clouded by a cataract but his left eye vision was 20-20. There is no evidence of the presence of caddies with either foursome.

Plaintiff’s foursome was about midway between tee and green on the 4th hole. Plaintiff had played his second shot from a position between 20 and 60 feet from the edge of the 4th fairway nearest the 3d fairway and was standing behind a companion who was playing his second shot. Plaintiff was never on the 3d fairway at the time of the events complained of. The evidence indicates that each foursome was probably aware that players were on the adjacent fairway but neither paid specific attention to the actions of the other. There is no evidence that any members of either foursome intruded on the fairway of the other prior to the accident hereinafter related.

At the time of the accident defendant drove his ball from the tee of number 3 hole and endeavored and intended its direction to be straight down the center of number 3 fairway. Plaintiff was in plain sight of defendant and defendant was in plain sight of the plaintiff. Neither specifically looked at the other. Defendant, after completing his swing, kept his head down a short time. When he looked up and located the flight of his ball, it had already travelled about 180 yards of the estimated 200 yards to plaintiff, was about 12 feet high, looked like it was going over the head of plaintiff, and