Rouch v. Bisig, 569

CourtCourt of Appeals of Indiana
Citation258 N.E.2d 883,147 Ind.App. 142,21 Ind.Dec. 591
Decision Date09 June 1970
Docket NumberNo. 569,No. 2,569,2
PartiesRicky Leroy ROUCH by Clyde Rouch, As Next Friend, Appellant, v. Viola BISIG and Richard W. Sand, as Administrator of the Estate of Harold Bisig, Deceased, Appellees. A 85

William K. Garrard, Graham, Rasor & Harris, Warsaw, for appellant.

William E. Borror, Hunt, Suedoff & Wilks, Fort Wayne, for appellees.

SHARP, Judge.

The Plaintiff-Appellant, Ricky Leroy Rouch, brought this action for personal injury damages against Defendant-Appellees, Viola Bisig and Richard W. Sand, as Administrator of the Estate of Harold Bisig, deceased. The Complaint charged the Appellees with negligence. The case was tried by a jury. At the close of Plaintiff's evidence the trial court directed a verdict for the Defendant-Appellees. The Appellants' Motion for a New Trial was overruled and this appeal resulted. The alleged acts of negligence are as follows:

'(a) Failure to have signs or warnings of any kind on or about Appellees' pier and that it was dangerous, hazardous and unsafe for persons to dive from the end of the part;

(b) Failure to provide a lifeguard to warn and inform invitees of the shallow water at the end of the pier and the danger of diving therefrom; and

(c) Holding out to invitees that Appellees' bathing beach and swimming facilities were safe and suitable for swimming and diving when Appellees knew they were not.

The Appellees asserted the defense of contributory negligence and incurred risk which were denied by Appellants.

We must consider the evidence in the light most favorable to Appellants.

The Appellees owned and operated a business known as Clearwater Resort which was on a lake adjacent to some rental cottages. There was a fence between Clearwater Resort and the cottages, which fence stopped 3 or 4 feet short of the lake and that area between the end of the fence and lake was used by occupants of the rental cottages as an entry way to and from the Resort. The Clearwater Resort consisted of 5 or 6 rental cottages, rental trailer spaces and a snack bar. The snack bar consisted of restaurant part and a larger screened-in porch. The snack bar sold sandwiches and soft drinks. It contained a juke box and pinball machines on the porch. Between the snack bar and lake there was a sand swimming beach which Appellees maintained as a part of their Resort operation. On the east of the swimming area was a pier owned and maintained by Appellees. This pier consisted of 4 ten foot sections which extended perpendicularly into the lake from the shore. The snack bar was open to the general public. The swimming beach was a part of Appellees' business, used to induce customers to do business with them. No charge was made for the use of the swimming beach. Some people used the swimming facilities who made no purchases. Appellees never refused anyone permission to swim as long as they behaved. The swimming area was in constant use in the summerting. Kids were in the habit of diving into the water from the pier on the east side of the swimming area. The depth of the water off the end of the pier was from 3 to 4 1/2 feet deep. The water in the lake was generally clear, permitting one to see the bottom. When there was swimming activity the water would be stirred up and one could not see the bottom. On nearby property called 'Merediths' there was an 'L' shaped pier where smaller children swam but older childeren swam at Appellees. The Meredith pier had a sign on the end 'no swimming or diving'. There was evidence that the water was deeper at Appellees' pier than at Meredith's pier. Appellee, Viola Bisig, admitted she knew it was dangerous to dive off the pier because of shallow water.

The incident in question occurred on June 5, 1964, when Appellant was 15 years old. His family had rented one of the Meredith cottages for the summer. His family had been renting cottage on this lake since 1960. The Appellant and his family were regular customers at Appellees' snack bar. Appellant testified he had gone swimming at Appellees' beach a dozen times in the summer of 1963 and had dived off the Appellees' pier about 5 times. It was common practice for swimmers to dive off Appellees' pier. In 1964 Appellant had not been swimming before June 5, the date of the incident. On June 5, 1964, Appellant and two companions decided to go swimming. The three boys went to Appellees' pier and dived in. The Appellant dived last. The Appellant could not see the bottom of the lake before he dived. He was unaware that one of the pier sections had not yet been put up. The additional pier section would have placed the end of the pier in deeper water. This additional section had been in place when Appellant used the pier in 1963. The Appellee Viola Bisig, saw Appellant and his companions with their swimming suits on. There were no lifeguards at the swimming area. The Appellees were aware that children made a regular practice of diving off the pier. Appellee, Viola Bisig, testified that she and her husband never allowed anyone to dive from the pier without going out and warning them not to dive because of the shallow water. There was evidence that Appellees made no warnings to the Appellant on the date in question or on previous occasions when they were diving off the pier. In fact, Appellant's mother testified she had been coming to this area since 1960 and had never seen Appellees warn anyone not to dive. There was evidence from one Richard Baker who had installed the four pier sections in 1964 for Appellees, and was a friend of the Appellees, that he had frequently dived off the pier and no one ever told him not to. Baker also testified that he never saw anyone else warned not to dive. The Appellant's father also testified that it was possible to see the pier and swimming area from the snack bar and that he had been present at the snack bar when persons dived off the pier in the presence of Appellees and no warning was made. In fact, the only evidence of any warnings was from the Appellees themselves. The Appellant testified no one had warned him not to dive from the pier and he had never heard anyone else warned.

In prior years there had been a fifth section of pier which was not in place on June 5, 1964. In previous years there had been a sign at the end of the pier 'Danger Shallow Water' in large letters and 'no diving' in smaller letters. This sign was not always up during the season and Viola Bisig testified such sign had not been put up yet on June 5, 1964, although the four sections of pier were laid about the middle of May. The Appellant testified that he could not recall ever seeing a sign on the Appellees' pier. There was testimony from both companions of Appellant that no sign was on the pier on June 5, 1964. There were other witnesses who testified to the same effect. One witness, Ruby Overmyer, testified that prior to 1964 she did not see any signs around the swimming area and in 1964, prior to the incident, there were no signs on the pier or on the shore.

We must now proceed to consider the specifications of error which had been argued on this appeal.

In Rush v. Clinger, Ind.App., 236 N.E.2d 840, 841 (1968), this court stated:

'There are numerous cases which set forth the legal principles which govern the consideration of a motion for a directed verdict and peremptory instruction. These principles were cogently enunciated in Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734, where the court stated that a trial court may properly give the trial jury a peremptory instruction to find for the defendant in the following instances:

"When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. (Citations omitted)

"When there is some evidence or legitimate inference supporting each material allegation of the complaint, the court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. (Citations omitted)

"In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw."

In their Brief Appellees state:

'Defendants concede that the swimming beach was maintained as a part of the resort business, to induce people to use the cottage and trailer rental facilities and buy refreshments.'

On appeal we will consider only the evidence most favorable to the party against whom the Motion for Directed Verdict was made and all reasonable inferences from such evidence. Layman v. Hall Omar Baking Co., 138 Ind.App. 673, 213 N.E.2d 726, rehearing denied 215 N.E.2d 692 (1966); Monon R.R. v. New York Central R. Co., 141 Ind.App. 277, 227 N.E.2d 450 (1967); and Beem v. Steel, 140 Ind.App. 512, 224 N.E.2d 61 (1967).

The trial court may not weigh the testimony of one witness against conflicting testimony of another nor may it weigh conflicting portions of the testimony of the same witness. Novak v. Chicago & Calumet Transit Co., 235 Ind. 489, 135 N.E.2d 1 (1956); Tuttle v. Reid, 247 Ind. 375, 216 N.E.2d 34 (1966).

The trial court may direct a verdict for the defendant when there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Whitaker v. Borntrager, 233 Ind. 678, 122 N.E.2d 734 (1954). See also Schroer v. Edward J. Funk & Sons, Inc., Ind.App., 233 N.E.2d 680 (trans. den. 237 N.E.2d 247) (1968).

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