Blacka v. James
| Decision Date | 30 November 1964 |
| Citation | 139 S.E.2d 47,205 Va. 646 |
| Court | Virginia Supreme Court |
| Parties | R. A. BLACKA v. Edward Jackson JAMES, Administrator, etc. |
Wayt B. Timberlake, Jr., Richard W. Smith, Staunton, for plaintiff in error.
Philip Lee Lotz, Staunton (Cochran, Lotz & Black, Staunton, on brief), for defendant in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.
I'ANSON, Justice.
This is an action by Edward J. James, administrator of the estate of Colin Kelley James, deceased, to recover for wrongful death by drowning of plaintiff's intestate, which was alleged to have resulted from the negligence of the defendant, R. A. Blacka, owner and operator of Shenandoah Acres, an amusement area and swimming resort in Augusta county, Virginia.
The specific acts of negligence alleged were defendant's failure (1) to have properly trained and an adequate number of lifeguards on duty at the time of the drowning of the deceased; (2) to take prompt and effective action 'to locate the person of the deceased' in the lake when notified that he was missing; (3) to provide suitable rescue and safety appliances; and (4) to place signs to indicate the depth of the water.
Defendant's motions to strike the evidence at the conclusion of the plaintiff's evidence and after all the evidence was heard were overruled, but the court limited the issue to be considered by the jury solely to the 'adequacy of the lifeguards.' The jury returned a verdict for the plaintiff in the amount of $6,000. Judgment was entered on the verdict and the defendant is here on a writ of error.
The basic question presented on this appeal is whether the defendant was negligent in failing to have a sufficient number of trained lifeguards on duty at the time of the drowning, and whether such negligence was the proximate cause of the death of Colin Kelley James.
Under familiar principles, the evidence will be stated in the light most favorable to plaintiff.
The drowning occurred sometime in the late afternoon of Sunday, July 17, 1958, in a lake owned and operated by the defendant, which the general public was invited to use upon the payment of an entrance charge. The lake covered some three acres and was circular in shape. The depth of the water varied from zero at the shore line to a gradually increasing depth of five feet, except in a channel in the center of the lake which was approximately 20 yards wide and 75 yards long, running generally east and west. This rectangular area was marked off by ropes attached to posts placed around the edge of the channel. The posts rose two feet above the water, with the depth of the water within the channel painted thereon, and the deepest part was shown to be 11 feet.
Near the center of the lake, and on the edge of the south side of the channel, there was a tower, 35 feet high, with three different platforms or levels. A series of ladders led to the three platforms. The first platform was some five to six feet from the surface of the water and a diving board extended from it over the deep water. Two cables extended from the top of the tower and were anchored on opposite sides of the shore, and there was a wheel device affixed to one of the cables which patrons would take hold of and ride to the surface of the lake.
On the afternoon of the drowning Colin Kelley James, 15 years of age, and Vance Allen Cline, his 17-year-old friend, went into the lake around 2:30 P.M. They spent their time diving, swimming and riding the cable line from the tower, but they were not constantly together. James was a good swimmer and at no time did Cline or anyone else see him in any difficulty. The last time Cline remembered seeing the James boy was around 4:30 P.M., when he (Cline) was on the top platform of the tower awaiting his turn to ride the cable. At that time he saw James swimming normally toward the tower ten to fifteen feet away. After riding the cable Cline returned to the tower and did not see James around, but thought nothing of it. Sometime later he attempted to locate James and made some inquires of friends as to where he was, but during that time he did not mention to the defendant, who was at the entrance to the resort area the entire afternoon, or to any of his employees that his friend was missing.
At about 5 P.M. Cline's parents came to the lake to give the boys a ride home. When Cline told his father that he had not seen the James boy for some time, the defendant was asked to page him over the public address system, which was done promptly, and Cline's father made several telephone calls to ascertain if James had left the grounds with someone else. Upon failing to locate him, a check of the bathhouse was made and his clothes were found. Thereafter defendant's lifeguards began a search in the roped-off area of the lake, and his body was found about ten feet from the tower, in nine feet of water.
The county medical examiner testified that death was due to drowning; that there were no visible marks on the body; and that the time of death was about 4:35 P.M.
Cline testified that he did not see any lifeguards on duty at the lake during the afternoon, but 'I cannot state for sure whether they were really there or not.' When asked if there were any lifeguards on duty at the tower, he replied, 'No, sir, none that I seen at the tower at all.'
There was testimony from some six witnesses that they did not see any lifeguards on duty the afternoon young James was drowned. All of these witnesses except one knew the James boy, but only one of them saw him in or near the lake at any time during that afternoon.
It was estimated that there were from 300 to 500 people in the lake during the afternoon, but not one of them saw the James boy in any difficulty whatever or heard any cry of distress.
Five witnesses testified on behalf of the defendant that they were on duty as lifeguards at various times during the afternoon the boy was drowned. Some of them alternated their duties between working at the concession stand and some of the cottages...
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