Blackwell v. Omaha Athletic Club

• Decision Date: 26 May 1932
• Docket Number: 28054
• Parties: BESSIE B. BLACKWELL, APPELLEE, v. OMAHA ATHLETIC CLUB, APPELLANT
• Court: Nebraska Supreme Court

242 N.W. 664

123 Neb. 332

BESSIE B. BLACKWELL, APPELLEE, v. OMAHA ATHLETIC CLUB, APPELLANT

No. 28054

Supreme Court of Nebraska

May 26, 1932

APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Syllabus by the Court.

1. A life guard at a bathing resort or pool who goes to the rescue of a patron or guest owes the duty of exercising ordinary care; that is, such care as would be exercised by an ordinarily cautious life guard under like circumstances; and for a failure in this respect, with resulting injury, an action for damages will lie.

2. Whenever there is evidence of so positive and significant a character as would support a verdict, if uncontradicted, it is the duty of the trial court to submit the case to the jury, under proper instructions. It is not the function of the court to weigh the evidence for the purpose of saying how the verdict should go. Stohlman v. Davis, 117 Neb. 178, 220 N.W. 247.

3. Instructions given the jury by the court on its own motion, and complained of by the defendant, and instructions to the jury requested by defendant and refused, examined, and rulings of court thereon, held without prejudicial error.

4. When a new trial is asked on the ground of misconduct of a juror, the finding of the trial court in support of the verdict will not be set aside unless the evidence of misconduct is of a clear and convincing character. Omaha Fair & Exposition Ass'n v. Missouri P. R. Co., 42 Neb. 105, 60 N.W. 330.

5. Verdict and judgment of $7,500 appearing excessive; ordered, if appellee within 20 days file remittitur of $3,000 as of date of judgment, that judgment be affirmed; otherwise, reversed.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by Bessie B. Blackwell against the Omaha Athletic Club. From a judgment for plaintiff, defendant appeals.

Affirmed on condition.

Kennedy, Holland & DeLacy, for appellant.

Daniel J. Gross, contra.

Heard before GOSS, C. J., EBERLY and PAINE, JJ., and BEGLEY and ELDRED, District Judges.

OPINION

ELDRED, District Judge.

This is a personal injury action brought by Bessie B. Blackwell, plaintiff and appellee, against the Omaha Athletic Club, defendant and appellant, to recover damages for injuries claimed to have been sustained on account of negligence of the life guard of the defendant.

The petition alleges that on June 25, 1929, the plaintiff was swimming in the club pool with a Mrs. Kopperud. That Mrs. Kopperud went beyond her depth and called for help; that plaintiff went to her assistance; and while attempting to aid her, an attendant at the pool, believing plaintiff to be in difficulty, jerked her and pulled her out over the bank of the pool, injuring her left arm, side and back. From judgment in favor of plaintiff, the defendant appeals.

The first assignment of error raises the question of the sufficiency of the evidence to sustain the verdict; the point being that there can be no action against the proprietor of a swimming pool based on rough handling by a life guard while making a rescue; and, even if there could be, there was not, in this case, evidence of negligent rough handling.

Proprietors of bathing resorts or pools in discharging their duty toward their patrons and guests are not only under obligation to keep an attendant or life guard on hand to supervise and protect bathers in case of accident, but are liable for ordinary negligence of the attendant in the performance of his duties. A life guard who goes to the rescue of a patron or guest owes the duty of exercising ordinary care; that is, such care as would be used by an ordinarily cautious life guard under like circumstances; and for a failure in this respect, with resulting injury, an action for damages will lie. In this case there is a direct conflict in the evidence offered on behalf of the plaintiff and that offered on behalf of the defendant as to the manner in which the plaintiff was removed from the pool by the attendant, and as to resulting injury.

On the part of the plaintiff there is evidence that, when Mrs. Kopperud called for help, the life guard being temporarily absent and not responding, plaintiff went to her assistance; that about that time the attendant returned, and considering that plaintiff was in need of assistance, undertook to get her out of the pool; that having pulled her to the brink of the pool he jumped up on the side thereof and attempted to pull her up, having hold of plaintiff's arm; he had difficulty on account of her weight, and to secure the aid of the buoyancy of the water, let her slide down in the water three or four times with her side scraping the edge of the pool before he finally got her out; and that the injuries complained of were due to the treatment so received. Testimony on the part of the defendant refutes that of the plaintiff; the life guard testifying he used what is referred to as the crossed hands method; that is, "You cross your hands. She was facing the wall of the pool. I crossed my hands, stooped, and let her body settle down in the water so as to take all of the slack in my arms and give me a good start to pull, then when I lowered her body in the water, I just straightened up and turned the hands and brought her into a sitting position on the bank. " There is evidence that this was a proper method to have used.

If the jury found the facts to be as indicated by the testimony offered on behalf of the plaintiff, there was evidence from which a jury might find the defendant liable. It thus became a question for the jury. Stohlman v. Davis, 117 Neb. 178, 220 N.W. 247.

By requested instruction No. 10 the court was asked to advise the jury as to the extent of defendant's liability in a case of this kind; the instruction advising the jury that defendant was only liable for failing to use that degree of care and caution which an ordinarily careful and prudent man would use under like circumstances. The gist of the entire instruction, while of considerable length, is that the defendant was only liable for the failure of its attendant to use ordinary care. While the instruction was more specific, and stated the issues more in detail, the jury were advised by instruction No. 1, given by the court on its own motion, upon what negligence the plaintiff was relying; and in instruction No. 2, that plaintiff must prove negligence before she could recover; and in instruction No. 3, negligence, ordinary care, and proximate cause were defined. We think the issues as stated to the jury by the instructions given were sufficiently definite and certain.

Assignments 10 and 11 are requests for instructions embodying parts of the requested instruction No. 10, and what has been said with reference to the refusal to give instruction No. 10 is applicable to these assignments.

The petition charges that the defendant was negligent in a number of particulars; and appellant urges that by the instructions of the court the jury were given a free hand; it being contended that the jury were not confined to any particular charge of negligence, upon which to base a verdict. The court, in stating plaintiff's claim, in the first instruction, omitted all reference to any act of claimed negligence other than negligence due to rough, careless and severe handling by the attendant; and by instruction No. 2, in stating what plaintiff must prove before she could recover, advised the jury: "She must further prove that her injuries were caused by negligence of the defendant." There is nothing in the record to indicate that the jury were ever advised that the plaintiff was making a claim that the defendant was negligent in any particular, other than as advised in instruction No. 1. The jury being advised of only one element of claimed negligence, and further informed that to recover plaintiff must prove negligence, we conclude the criticism made cannot be sustained.

Complaint is made of the...