#### Eva M. Arnold, as Administratrix, etc., of Frederick H. Arnold, Deceased, Respondent, *v.*The State of New York, Appellant. Eva M. Arnold, as Administratrix, etc., of Arthur Frederick Arnold, Deceased, Respondent, *v.*The State of New York, Appellant. Marie McLauchlan, as Administratrix, etc., of William H. McLaughlan, Deceased, Respondent, *v.*The State of New York, Appellant. Peter Livadas, Respondent, *v.*The State of New York, Appellant. Bessie W. Ballantyne, as Administratrix, etc., of Charles E. Ballantyne, Deceased, Respondent, *v.*The State of New York, Appellant. Anna B. Youker, Respondent, *v.*The State of New York, Appellant.

Third Department

July 1, 1914.

Negligence—liability of State for injuries caused during automobile races held on fair grounds.

Where the State, acting through the State Fair Commission, permits a race of high powered automobiles capable of the speed of sixty miles an hour, to be held on State fair grounds on a track originally made for horse races, and only protected by a wooden fence of flimsy construction, and incapable of resisting the impact of such machines, it is liable in damages for death or injury caused by a racing machine which when a the burst left the track and, breaking the fence, plunged into a crowd of spectators.

The liability of the State is predicated upon allowing such races to be held upon such unprotected track, and not upon the fact that it failed to stop the races when it became evident that a the of the machine causing the accident was in a dilapidated condition and liable to burst. This, because there was not sufficient time for such action.

The State Fair Commissioners are officers and agents of the State, and their acts are binding upon it, and a recovery may be had before the Board of Claims, for the State, by section 264 of the Code of Civil Procedure, has consented to be sued.

Recovery may be had, although the Commissioners employed an expert to organize and conduct the races for a consideration, for the actionable *254negligence was in permitting the races to be held on such track, having no reasonable protection for spectators.

The manager employed by the Commission was not an independent contractor, as it appeared that he was paid a stated sum as remuneration for his services.

The spectators injured were not guilty of contributory negligence in standing by the fence surrounding the race track, as that was the only place, other than the grand stand, from which the races could be viewed.

Appeal in the first case by the defendant, The State of New York, from a judgment and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of said board on the 13th day of February, 1914, awarding to the claimant the sum of $8,000 and interest, upon the report of a referee appointed to hear and determine the issues.

Appeal in the second case by the defendant, The State of New York, from a judgment and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of said board on the 13th day of February, 1914, awarding to the claimant the sum of $500 and interest, upon the report of a referee appointed to hear and determine the issues.

Appeal in the third case hy the defendant, The State of New York, from a judgment and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of said board on the 13th day of February, 1914, awarding the claimant the sum of $10,000 and interest, upon the report of a referee appointed to hear and determine the issues.

Appeal in the fourth case by the defendant, The State of New York, from a judgment and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of said board on the 13th day of February, 1914, awarding the claimant the sum of $800 and interest, upon the report of a referee appointed to hear and determine the issues.

Appeal in the fifth case by the defendant, The State of New York, from a judgment and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of said board on the 13th day of February, 1914, awarding the claimant the sum of $5,000 and interest, upon the report of a referee appointed to hear and determine the issues.

Appeal in the sixth case hy the defendant, The State of New York, from a judgment and determination of the Board of *255Claims in favor of the claimant, entered in the office of the clerk of said board on the 13th day of February, 1914, awarding to the claimant the sum of $2,000 and interest, upon the report of a referee appointed to hear and determine the issues.

*Thomas Carmody, Attorney-General [Joseph A. Kellogg*and *Joseph P. Coughlin, Deputy Attorneys-General,*with him on the brief], for the appellant.

*Lamont Stilwell*and *Walter W. Magee,*for the respondents.

Judgments unanimously affirmed, with costs, on the opinion of the referee.

The following is the opinion of the referee:

Irving G. Vann, Official Referee:

For a long time the State of New York has owned a tract of land in the town of Geddes, county of Onondaga, consisting of about fifty acres, known as the State Fair Grounds, on which it has held a fair every year for a number of years. Many attractions were presented and many people attended. In 1908 President Roosevelt was present and addressed the people, and in 1911 President Taft. Aside from extensive exhibits of live stock, the products of agriculture and the arts, there were at times flying machines, horse races, and during five of the later years, automobile races to attract and entertain the spectators.

At an automobile race held during the fair of 1911 one of the competing cars left the track, brushed away the fence around it and, darting into the crowd, killed eleven persons and injured others. Claims were filed against the State by the persons injured, as well as by the personal representatives of those who were killed, for the recovery of damages resulting from the accident pursuant to the statute in such cases made and provided. Four of the claims founded on injuries resulting in death and two of the claims founded on injuries not resulting in death were referred to me as official referee to take the evidence and report the facts with my opinion to the Board of Claims. These cases were tried together and the leading facts, common to all, are as follows:

In September, 1911, a State fair was held on the grounds of the State, lasting from the eleventh to the sixteenth inclusive. *256It was conducted, pursuant to the Agricultural Law, by the State Fair Commission, and through their procurement a fifty mile automobile race was held during the afternoon of the sixteenth, the last day of the fair. The race had been extensively advertised throughout the State by bills posted, handbills distributed and advertisements printed in more than three hundred newspapers. It was managed by C. Arthur Benjamin under arrangement with the State Fair Commissioners, who hired him for the purpose and paid him an agreed sum for his services. The track on which it was held had been constructed some years before mainly for horse racing, but had been used by the State on four previous occasions in four different years for automobile racing. Record after record for both slow and fast time had been made at races held by the State on said track, and during the year 1910, which was the year preceding the accident under consideration, all previous records were broken by a car which made a mile in forty-seven seconds.

The track, although called circular, was reaHy elliptical in shape, one mile in circumference and about fifty feet wide for the most part, but wider in some places, with two straight courses and two curves, each course and each curve being one-fourth of a mile in length. It was constructed of packed clay at great expense and was substantially level, with a slight elevation on the outside. On either side was a wooden fence made of posts eight inches thick set in the ground eight feet apart, with a strip of board one inch thick on top and two boards one inch thick between the top and the ground. It was built to turn horses, not automobiles. Spectators were expected by the management to stand, and on the occasion in question did stand, next to the fences in order to see the race. While they were excluded from some places, they were not excluded from the place where the accident happened. There was nothing except the fence to prevent a car, if it left the track owing to an accident, from dashing into the crowd and crushing many human beings. At a previous race held by the Commission a car had thus left the track and crashed through the fence, but, fortunately, without injuring any one. Warned by this, a second fence had been erected.in one place for the *257race of 1911 to furnish further protection where it was thought to be most needed, but, unfortunately, there was no additional fence at the point where the accident in question happened.

The race was for fifty miles and on the forty-fourth round only three of the seven competitors who had started were left, the others having given up and retired. One was a Knox car driven by Lee Oldfield, a competent man. From the thirty-eighth to the forty-fourth round the tire on the right wheel forward of this car had shown plain signs of wear, with loose pieces flapping and other evidence of weakness. Whether the driver could see this or not does not appear, but some of the spectators saw it with apprehension. Suddenly, without further warning, as Oldfield was making the northeast curve at high speed, there was a loud report like an explosion, his car left the track, tore through the fence as if it had been a cobweb and plowed into the spectators standing on the inside of the fence several rows deep, crushing out eleven lives and maiming many people, including the intestates and the two surviving claimants. It ran from sixty to seventy feet before it stopped, a substantial wreck.

There were about 50,000 people on the grounds, crowded in almost everywhere about the fences bounding the track, for the grand stand was full. The management knew there would be a great crowd at the races. As Mr. Benjamin testified: “We knew we were going to have a tremendous crowd, at least, I knew it, and you can’t control them,” so they erected the second fence at a dangerous corner to keep the crowd away and “ took chances on the other places * * * whatever there were.” He further said that while there was no “ unusual danger ” at other points, “there is danger with an automobile; it is liable to run into a crowd anywhere.” The average speed made during this race was about a mile a minute, but it was faster than' that on the straight courses and slower on the curves.

Accidents had been frequent on other mile tracks of circular or elliptical shape, and one had happened before on this track. All the experts agree that if an accident happens to a car going very fast around a curve on a circular track it is almost certain to leave the track on the outer side and run on, crushing every*258body in its course, until friction or obstacles stop it. Skidding has a strong tendency to make a car thus leave the' track and the explosion of a tire generally has that result. Much depends upon the rate of speed, for the tendency increases faster than the speed. As Mr. Benjamin testified: “ Anybody could drive a car forty miles an hour without skidding, * * * but you are not racing until you are going fifty miles an hour,” and then “there is usually a good deal of skidding going around a turn.” A high car is more liable to skid than a low one and the Knox car was high, the highest in the race and one of the heaviest. In making a curve at high speed the rear wheels are apt to skid, and as Mr. John Wilkinson says, “ it is just a question of judgment with [the driver] how much skidding he can stand, * * * the more he can stand 'the faster he can go * * * and the better driver he is in a race. ” At the time of the accident the tire on the right wheel forward exploded from some cause not definitely known, but probably owing to the severe strain of rapid motion around the curves.

The great danger to spectators in auto races is the strong tendency of a car to leave the track and run over the people. In case of an accident, whether from skidding, the explosion of a tire or other causes, as a rule the car leaves the track unless it is guarded in some way so as to prevent it. This track was not guarded at all, for the fence afforded no protection to speak of against a car weighing from 2,500 to 2,700 pounds, going at a rate approaching a mile a minute.

The State owned the track, invited the people to attend, charged an admission fee, which gave the right of entry to any part of the grounds except the grand stand, and made money out of the races. It was not acting in a governmental, capacity as in the case of hospitals, prisons, etc., but as the proprietor of a race track. The track was of such shape, form and extent, of such construction and with such slight protection against a car running off, that it was not a suitable and proper place for such a race, having in mind the safety of the spectators invited to witness the same. While this track was better than many others, and one of the best of its kind, it was hot reasonably safe for a fast automobile race.

A locomotive is confined to iron rails, securely fastened to *259heavy wooden ties embedded in the solid earth, yet sixty miles an hour on a straight track is great speed for it to make, and the law requires a high degree of care in maintenance and management. An automobile does not run on rails, but runs on the surface of the ground, with wheels unconfined, and yet the cars in this race were allowed and expected to run from fifty-five to sixty miles an hour around a curve with nothing but a frail fence .between the track and thousands of spectators. Reasonable care required special construction to provide for the safety of those invited by the State to a place of public entertainment provided by itself.

The Legislature had appropriated $40,000 for construction and repairs during the year 1911* and substantial protection could have been provided from the gate receipts, at slight expense when compared with the cost of the track, by erecting guards or other agencies to arrest the force of the car and stop it if, in case of accident, it should start to leave the track. As the Commissioners knew, or should have known, among practicable methods, some in actual use on other tracks where auto racing is allowed, are a decided elevation of the grade toward the outer side of the track, which strongly aids in preventing the car from leaving the track, but impairs its value for horse racing; a cement wall from two and a half to three and a half feet high on the outer lines of the track; a low bank of sand, deep enough to arrest motion but not deep enough to prevent spectators from looking over it, placed between the outer fence and another fence a few yards distant, with careful policing to keep the public from standing on the sand between the fences; two fences of heavy iron rails, one inside and the other outside, or possibly a single strong wooden fence with heavy posts set deep in the earth and covered on both sides with planking three inches thick. Even if the space around the fences had been roped off for a few rods back and the crowd had been kept out of the intervening space, there would have been some and perhaps adequate protection. Some of these methods would have stopped the car in question with no injury to spectators, while others would have strongly tended in that *260direction and others still would at least have mitigated the horrible catastrophe. While the expense of some of these methods cannot be overlooked, it weighs less than human life in the balance on the other side. If a race cannot be held without inherent and extreme risk to life and limb, the command of the law is that it must not be held at all.

Certain precautions were taken by the Commissioners, who were men of high character and standing, but naturally anxious to keep down expenses and increase the income from the fair. The race was held under the auspices of the American Automobile Association, a strong national society, well officered and managed, which bontrols most of the automobile races in the country. The drivers were carefully selected and were competent. The cars, of standard make, were properly inspected, and there were' many policemen, some from *a*distance, and other special officers to preserve order and keep people off the track, but, alas, the greatest and most obvious source of danger from a non-protected track was not guarded against except by a flimsy fence, which could not resist a powerful car, with tremendous momentum, in case it left the track, as the Commissioners knew or should have known was liable and even likely to happen.

Whether they should have stopped the race when they saw, if they did see, the badly worn tire in rapid motion, is not found to be actionable negligence, because the time for thought and action was so short. I hold the State liable for holding or permitting to be held on its own ground, under the circumstances disclosed by the evidence, such a fast race, with powerful cars, on an unprotected track, without the exercise of reasonable care to provide against accidents well known to be likely to happen. If a private individual had done this he would have been liable, and the sovereign State has graciously imposed upon itself the same liability which is imposed by its laws upon its own citizens.

The State Fair Commissioners were the officers and agents of the State and what they did and what was done under their direction was done by the State, the same in effect as if they had been the agents of an individual or the officers of a private corporation that owned the track and gave the exhibition, *261charging an entry fee to the drivers and an admission fee to the spectators. The State is impersonal and cannot hold a fair itself but only through its representatives. The Commissioners were its representatives on the occasion in question with broad powers conferred by statute.* The State gave them full charge of its extensive property used for the purposes of the fair, required them to hold an annual exhibition, authorized them to make and enforce rules for its conduct, including entries, admissions, exhibits, and “any other matters which they may deem proper in connection with such fair; ” to have races, which included auto races, as they were well known when the statute was passed, and to charge entry and admission fees, and the profits, after deducting expenses, were to be paid over to the State. In 1911 the net amount thus paid over exceeded $55,000, the gross receipts being more than $140,000. In other years, also, profits had been paid to the State and retained by it as profits. Authority to hold a fair and carry on races in order, among other things, to create profits, includes authority to use the ordinary means and agencies to produce such profits. The holding of the fair was State work, done by its direction pursuant to statute. It was the act of the State as much as building the barge canal or erecting the State capítol. It was a business enterprise to some extent, although not exclusively, and revenue was expected to be derived therefrom and was in fact derived therefrom. Nothing used for the fair except exhibits was owned or contributed by individuals or corporations. The track belonged to the State, the fence was built by the State, the fair was held by the State, the danger was created by the State, the invitation to attend was issued by the State and the negligence was the negligence of the State.

While the State, being a sovereign, cannot be sued by a subject without its consent, by one of its own statutes passed as an act of justice to its subjects it has expressly assumed liability for damages caused by “a wrongful act, neglect or default” on its part and has authorized the Board of Claims to hear and determine all claims founded on its negligence, which nec*262essarily means the negligence of its own officers acting within the apparent scope of their powers, or while engaged in conducting its business. (Code Civ. Proc. § 264.) It has also provided that its liability in such and other cases shall be measured by “ such legal evidence as would establish liability against an individual or corporation in a court of law or equity.” (Id.)

The history of legislation on the subject shows progressive growth from 1810 to 1911, with continuous enlargement of power to determine claims against the State. If the language of the statute fails to include such claims as those now under consideration, it is difficult to see what language would. The officers of the State are like the officers of a corporation and bind the State in the same manner by acts done within the limits of their authority. While the Commissioners were not authorized to he negligent any more than the officers of a corporation are so authorized, still they had the capacity to be negligent, and if, in .holding a fair for the State they were negligent, it was the negligence of the State, just as the negligence of officers of a corporation is the negligence of such corporation. Otherwise the assumption of liability by the State for damages caused by 11 a wrongful act, neglect or default on the part of the State ” would be meaningless and without effect. How can the State be guilty of a wrongful act, neglect or default except through its “officers and employees,” and if those words were inserted in the statute it would not add to its meaning. *(Sipple*v. *State,*99 N. Y. 284, 288.) The evidence of negligence in these cases would completely overwhelm a private individual or corporation, and the situation is the same in principle, although the State is defendant. *(Quayle*v. *State of New York,*192 N. Y. *41,*51; *Bowen*v. *State of New York,*108 id. 166; *Burks*v. *State of New York,*13 Court of Claims, 153; less fully reported, *sub nom. Burke*v. *State of New York,*64 Misc. Rep. 558.)

Even if Mr. Benjamin was not the agent of the Commission, as claimed by the plaintiffs, but was an independent contractor, as claimed by the State, it would not change the result, for it was an independent and actionable act of negligence to permit such a race to be held on such a track owned *263by the State without reasonable precautions to protect those who had been invited by the State to witness the exhibition and had paid the State for the privilege. *(Deming*v. *Terminal Railway of Buffalo,*169 N. Y. 1.)

I am of the opinion, however, that Mr. Benjamin was not an independent contractor within the meaning of the law. On the 6th of June, 1911, he wrote a letter to the Commissioner in charge of the State fair proposing “ to put on a high grade lot of attractions for an appropriation of $4,000 ” which would “guarantee the appearance of at least three of the best known racing men in the country. While our past meets have been very successful,” he continued, “it will be necessary to put on a better card than we have had before, and with this appropriation I am confident that I can put on a list of events that will be very attractive. * * * Last year you will note that we secured through Ralph De Palma the one mile record and the five mile record. As to my ability to conduct the automobile events successfully, there is nothing for me to refer to more than the meets already run by me for you. I have already got my lines out for the leading drivers and I am sure that the 1911 Automobile Day will eclipse all previous efforts. I will agree to handle these events the same as in the past and conduct all the details *for a remuneration of*$500 and I am sure that you will agree with'me that the work is worth the above amount when you consider that I am forced to devote a great deal of time continuously from now until the end of the fair. * * *” The previous arrangements alluded to were that Mr. Benjamin “ managed the automobile races and has hired the help. Hired the attractions and drivers and got up pro-grammes and looked after the details,” and was paid $500 *“for his services.”*The Commission accepted Mr. Benjamin’s proposition on the same day that it was made and on the ninth of September authorized the Commissioner in charge, “in order to secure Ralph De Palma for auto races, * * * to expend not to exceed $1,000 additional for automobile attractions, making the total expense not to exceed $5,000 exclusive of $500 paid to C. A. Benjamin.”

The race was inherently dangerous under the circumstances. Mr. Benjamin furnished nothing and contributed nothing, but *264simply superintended the race, expended the appropriation for the Commissioners and was paid a certain sum for doing that work. Unless he had absolute control of the work of putting on and conducting the races, with no power in the Commissioners to direct or intervene, he was not an independent contractor. If he was to have such absolute control, the contract was void as an abdication of duty on the part of the Commissioners. Obviously there was no such intention, and hence he was the hired agent of the Commissioners, the same as the aviator.

There was no contributory negligence on the part of the decedents or the living claimants. They attended an exhibition, given by the State on its own ground, upon its invitation and after paying the admission fee charged. The grand stand was full. They stood by the fence, and where else could they stand and see the race which they had paid to see ? What everybody did in the presence of the managers anybody could do. *(Boyce*v. *Manhattan R. Co.,*118 N. Y. 314, 319.) A multitude of people stood by the fence at various points, and the fence looked like an adequate guard, although it was not in fact. There was no other place to stand if they saw the race at all. They were allowed and expected to stand where they did. No warning of danger was given and they had reason to believe the place was safe. It does not expressly appear that they knew the danger of auto racing in general, or the particular danger in this race, and I cannot find from the circumstances that such unskilled observers knew or should have known it. They had not had the experience and the opportunity to know that the Commissioners had. They stood where they had a right to stand in the place provided for them, and in doing so they were not guilty of contributory negligence.

The assessment of damages,'difficult in all cases, is especially difficult where death results from the accident. There are so few facts to guide the judgment that the great power intrusted of making an award involves so many elements of mere presumption as to resemble, although not to constitute, the exercise of discretion. The main elements to be considered are the age of the decedent, his health, habits, qualities, expectation of life and expectation in life, earning ability, income, the *265prospect of increase of income, the number, age, sex, situation and condition of those dependent on him for support, and his disposition to support them well or otherwise, and the like. Nothing can be allowed for sentiment, for grief or for suffering, even when death was not immediate, but the precise question is what were the probable chances of pecuniary benefit from the continuance in life of the decedent worth under all circumstances ? *(Thomas*v. *Utica & Black River R. R. Co.,*6 Civ. Proc. Rep. 353; 34 Hun, 626; 98 N. Y. 649.) Conscious that I cannot satisfy the expectation of the parties in this respect, and realizing that the discriminations made may not be appreciated by the lay mind, after careful reflection I recommend the following awards:

In the case involving the death of William H. McLauchlan, aged forty-one years, of good health and habits, highly educated in celebrated schools. in this country and in Europe, a scientific man of experience and skill, who had been instructor in chemistry at Princeton University and at the time of his death was employed as an expert chemist by the Solvay Process Company, of Syracuse, on a salary of $175 a month, with participation in the profits amounting to twenty-five per cent more, making annually about $2,625 in all, with a reasonable probability of increase upon longer service, devoted to his family and supporting them well, who left him surviving a widow thirty-six years of age, one child three years of age and one posthumous child, born shortly after the accident, with practically no means of support, I think an award of $10,000 should be made.

In the case involving the death of Charles E. Ballantyne, aged twenty-seven years, of good health and habits, with regular employment as assistant bookkeeper at a salary of $1,000 per year in a bank, in the ordinary line of promotion, competent and regular in attendance, who left him surviving a widow without means of support, aged twenty-five years, whom he carefully supported, but no children, I recommend an award of $5,000.

In the case involving the death of Frederick H. Arnold, aged thirty-one years, of good health and habits, manager for eight years of a publishing corporation, with an earning capacity as *266measured by his salary of $2,000 a year, with a reasonable prospect of speedy promotion to a larger field with increase of salary, who lost no time at his work and had the custom and disposition to take good care of his family, who left a widow, aged twenty-nine years, and one child, aged four months, both without means of support, I recommend an award of $8,000.

In the case involving the death of the infant, Arthur Frederick Arnold^ aged nine years, the award must rest largely on the possibility that, in the future, he would, had he survived, have furnished pecuniary help to his mother in the form of personal services during his minority, or aid in money or its equivalent in her old age if she became destitute. The law says that possibility is worth something and I am commanded to convert it into money. I do so by recommending an award of $500, which is slight, but under the circumstances seems to me just and proper.

In the cases of Peter Lívidas and Anna B. Youker, who survived the accident and are still living, while evidence was given before me that they were injured by the accident, none was furnished as to the extent of then injuries, and I leave the assessment of damages in their cases wholly to the Board of Claims without any recommendation, according to the arrangement of counsel.

I request the attendance of counsel when the formal findings are settled, so that all the facts warranted by the evidence may be found and the parties thus protected on the appeals which will doubtless be taken. Any party may have the findings settled on a notice of two days.

*

 See Laws of 1911, ehap. 153.— [Rep.

*

 See Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9), §§ 290-294, as amd. by Laws of 1910, chap. 366; since amd. by Laws of 1913, chap. 814.— [Rep.