City of Longmont v. Swearingen

• Decision Date: 04 April 1927
• Docket Number: 11552.
• Parties: CITY OF LONGMONT v. SWEARINGEN et ux.
• Court: Colorado Supreme Court

254 P. 1000

81 Colo. 246

CITY OF LONGMONT v. SWEARINGEN et ux.

No. 11552.

Supreme Court of Colorado

April 4, 1927

Department 1.

Error to District Court, Boulder County; Robert G. Smith, Judge.

Action by Millard L. Swearingen and wife against the City of Longmont. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Pershing, Nye, Tallmade & Bosworth and John Pershing, all of Denver, for plaintiff in error.

Rinn &amp Connell, of Boulder, for defendants in error.

SHEAFOR J.

The defendants in error, hereinafter referred to as the plaintiffs, recovered a judgment for $3,500 against the plaintiff in error, hereinafter designated as the defendant, to review which defendant brings the case here. Plaintiffs' recovery was for the death of their son Gene Leslie Swearingen, caused, they allege, by certain acts of negligence of defendant; the one relied upon here being that defendant failed to exercise reasonable care in connection with the maintenance and operation of a swimming pool, owned by defendant, in that defendant failed to provide a life guard or attendant to render assistance in time of need, and that such failure was the proximate cause of his death.

Defendant claims that the judgment should be reversed for the following reasons: (1) That its motion for a nonsuit should have been sustained because the evidence was insufficient to establish that the death of the deceased was caused by the negligence of the defendant, and that there was no evidence from which the jury could find that the presence of a guard would have changed the results; (2) that the plaintiffs alleged that the death of the deceased was due to a combination of circumstances arising by virtue of defendant's negligence, and that the evidence does not support such allegations; (3) that the court erred in giving to the jury instructions 6 and 12; (4) that the court erred in allowing the witness Hugh Choice to testify as to the condition of the water in the swimming pool on the 17th day of August, 1924 and (5) that the court erred in overruling defendant's motion for a new trial.

The evidence showed, or tended to show, that the death occurred on August 17, 1924, in a swimming pool in Sunset Park; that at the time there were quite a number of persons bathing in the pool, and others on the bank; that a number of small children were there with their parents; that Gene, the deceased, was about 16 years of age, strong and healthy, and a good swimmer; that he, with another boy, Lyle Davis, went in the pool together; that at the time of his death he was about 35 feet from the tower and dike where the boys entered; that he sank three times, and that about nine minutes elapsed between the time he was first seen in distress until he sank the last time; that much effort was made, by calling for help and trying to find a guard, to get to the boy's assistance; that no guard could be found and that none was there; that his struggling and distress attracted the attention of his mother and others; that, after his body was recovered, water with some blood was seen coming from his mouth, and his face and arms were blue. Two doctors were immediately called, and they endeavored to resuscitate him. The opinion of one of the doctors was that heart failure rather than drowning was the cause of death, but said only an autopsy would have shown conclusively the cause. He further said that a person affected with heart attack would not be apt to struggle in the water from three to five minutes, and in fact, not more than one minute. The other physician said he was not able to reach a satisfactory conclusion as to what did cause the boy's death, but that heart failure was a possible cause. There was also evidence that one Johnson was employed as a life guard, who had been on duty there continuously prior to the 17th of August, but was absent, with the knowledge of defendant, on that date.

The park and pool were owned and operated by defendant under the control and management of the Longmont park board. One Niven was a caretaker of the premises, employed by the park board, and held a concession for the renting of bathing suits, and for the sale of soft drinks and candies. Defendant received a percentage of the profit earned by Niven from the concession. On the Sunday in question the deceased had rented from Niven a bathing suit, which he was wearing at the time of his death. The coroner held no inquest, but signed the death certificate showing accidental drowning as the cause of death, and testified that he based his information upon facts obtained from the doctors. The evidence further showed that the deceased lived at home with his parents; that he was strong and healthy; worked with his father upon the farm; and aided in the support of the family.

The evidence was ample to sustain the verdict of the jury that the cause of death was drowning. In the light of the evidence, we think it would have been very difficult to secure a jury which would have returned any other finding.

As to defendant's first proposition, it seems to be well settled that negligence may be proved by showing circumstances and facts from which negligence may be logically inferred. Hotchkiss Mt. M. & R. Co. v. Bruner, 42 Colo. 305, 94 P. 331; Vallery v. Barrett, 63 Colo. 548, 551, 552, 167 P. 979. And also it has been held that it is only where there is an entire absence of testimony tending to establish the case that a nonsuit may properly be ordered, or a verdict directed. Hotchkiss Mt. M. & R. Co. v. Bruner, supra; Vallery v. Barrett, supra; Williams v. Sleepy Hollow M. Co., 37 Colo. 62, 72, 86 P. 337, 7 L.R.A. (N. S.) 1170, 11 Ann.Cas. 111.

So, 'where the question of negligence depends on a state of facts from which different minds may honestly draw different conclusions on that issue, the question must be submitted to the jury for determination.' Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501-508, 98 P. 808, 812; Catlett et al. v. C. & S. Ry. Co., 56 Colo. 463, 471, 139 P. 14; Williams v. Sleepy Hollow M. Co., supra.

In the examination of this evidence we are led to the conclusion that there was sufficient on the question of negligence to require submission of the case to the jury, and to sustain the jury's finding on that question.

It is urged, however, that there was no evidence that the defendant's negligence was the proximate cause of the death. While it is true that there was no direct evidence that, if a life guard had been present, death would not have resulted, yet we think the facts and circumstances proven were sufficient, together with the inference which may logically be drawn from the evidence, to justify the finding that a failure to...