Appeal
from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.
Bard
recovered judgment against Gaines and another, proprietors in
part of the "Old Hale Bath House," a public
bath-house in the city of Hot Springs, for injury from a burn
which he claimed to have received, through the negligence of
defendant's servant, while taking a vapor bath. The
defenses to the action were that the injury was occasioned by
plaintiff's negligence; that the was not guilty of
negligence; but that if he was negligent, he was not
defendants', but plaintiff's, servant.
Plaintiff
testified as follows: "I came here in April, 1891, to
take the hot baths and also medical treatment for my disease
paralysis of the legs, with which I have suffered twenty-four
years. I employed Dr. C. S. Reid as my physician, and he
prescribed for me to take my baths at the Old Hale Bath
House, which was owned by the defendants and others. I went
there and bought a ticket from Williams, the clerk and
superintendent, for $ 7, of which I understood $ 4 was for
the ticket and $ 3 for the attendant. He wrote the name
"John" on the face of the ticket, and told me that
John Martin, who was standing near by, would show me the bath
and attend to me. I followed this John into the back part of
the building where the hot rooms were, and he prepared the
hot water bath in one of them, and I bathed there. I took one
of the twenty-one baths, for which the ticket called, daily.
When I would come for a bath, Williams would take my ticket
punch it and give me a single bath ticket with the name John
written on it, and I would take it back in the bathing
department to John, and he would prepare the bath for me. My
physician told me to take the baths at a temperature of 96
degrees, and I so instructed John. I could not well get in
and out of the bath alone, and John would assist me. When
this ticket was used up, I bought another at the same price
from Williams, and he wrote the name John across the face of
it. I continued to bathe on in the same way until in June
when I told Dr. Reid I was not perspiring enough, and he told
me to take the vapor. After I had taken two or three full
vapor baths I told him I could not stand it, and he told me
to take knee or leg vapors merely, which I commenced doing.
These were taken by sitting outside the vapor box and putting
my legs through an oblong hole into the vapor box, with
towels wrapped about the knees to prevent the escape of the
vapor. I took about ten baths in this way."
"On
the 23d of June he put my legs into the vapor, wrapped the
towels about them, and, leaving, said he would be back soon
and if I needed him to call, and I told him he could go and I
would call when I needed him. Immediately after he was gone I
felt something burning my leg on the top, between the knee
and ankle, and I moved it about to get it out of the way, but
it continued to burn. I commenced trying to take it out of
the vapor and called John, telling him to come on, that I was
burning up. He said all right, and I think I heard him laugh.
He did not come until I had got my legs out, which took me
about five minutes; they were in the vapor about five
minutes. I told him to go and put some cold water into the
bath tub, that my leg was burned. He did so, and I got into
it and commenced rubbing my legs, and the skin from the burn
commenced rising to the top. I got out, went to my room and
sent for Dr. Reid. He gave me some salve, which would ease it
for a while. I suffered a great deal from it, night and day
was confined to my room two or three months and unable to
earn anything. I was paying $ 4 a week for board, which
before the burn I was able to earn by selling books. The hole
was oblong, and just large enough to receive both legs. I
have thought over this matter a good deal, and have never
been able to tell how I got burned in there. I looked in, but
it was so dark that I could see nothing. The burn was about
six inches long and about half way between the knee and
ankle. John always opened the vapor bath for me and helped me
to put my legs into it, and when I wanted to get out I would
call him. I was never burnt in the vapor before. I always
bathed in this same vapor. My legs had been in it for about a
minute before I felt the burning sensation. I usually took
knee vapors for from three to five minutes. I neither
employed nor paid John Martin. Williams pointed to him and
said, 'There will be your attendant.'" (The
plaintiff then bared his leg and pointed out as the scar from
the injury a somewhat pinkish place on the front of the leg
about six inches in length and from one to two inches in
breadth, covered with smooth skin, in which there was no
depression).
Musick
testified: "I was clerk and manager of the Old Hale Bath
House from the 16th of January to the 16th of March, 1891
and sold the tickets. The price of bath tickets and the fee
of attendants were regulated by the Secretary of the
Interior. The price of a bath ticket for twenty-one baths was
$ 4, and the fee of an attendant $ 3. A bathing attendant was
allowed to charge 15 cents a bath, or $ 3 for twenty-one
baths, and the highest price a bath-house was allowed to
charge was 35 cents a bath. The bath-house proprietors had
nothing to do with the fee of the bathing attendant, but
sometimes the bather would pay it to the manager, and let him
pay it to the attendant, and when he would express such a
desire I would take it. If the purchaser wanted an attendant
but asked for no particular one, the manager would assign
one. The bathing attendants were selected by the manager of
the bath-house, and no one was allowed there as attendant
except by arrangement with the owner or manager.
"Persons
desiring to be bathing attendants would apply for positions
as such. They did this for the purpose of having
opportunities of being employed as attendants by those who
came there to bathe. When one would apply for permission to
enter the bath-house to seek employment from bathers, he was
permitted to do so if there was a vacancy and he was
competent and careful; otherwise not. Neither the owner nor
manager had anything to do with the directions as to the
temperature, kind or duration of baths to be taken, in any
case. Directions for all this were given the bather by his
physician. The temperature of the vapor baths was fixed by
the bath-house, and was stationary, except as it changed from
natural causes. If the bather did not wish an attendant, he
could bathe without one, and in that case he would be shown
where to go for his bath. While the attendant was serving a
bather, he was under his direction, and not under that of the
manager or proprietor. The manager stays in the front part of
the house where the office is kept and the tickets sold, and
if he were to call any attendant who was busy, he could not
be heard by him. The proprietors paid the attendants nothing,
but they kept fires in the stoves in the halls, and kept the
rooms, in which they bathed those who employed them,
clean."
Bonner
testified: "I am a plumber and gas-fitter. I have
overhauled the plumbing of the Old Hale Bath House several
times, and have done work there during the present year. I
know how the vapors are arranged. Under the rear of the
bath-house there is a ditch walled up with brick, through
which hot water runs all the time, and on the top of the
inner wall of this ditch is a pipe three inches in diameter,
through which hot water runs; and there were three or four
vapor rooms or boxes about two and a half or three feet
square, under each of which there is let into the 3-inch
pipe, at right angles, a 1-4-inch pipe one or two feet long,
extending out under the vapor room, where its end was turned
upward for two or three inches, and finished off with a gas
tip of which the opening was pressed together, so as to make
a flat stream, separate the water and cause it to vaporize
more readily. This tip is directly under the seat of the
vapor room, so that the particles of water thrown upward from
it strike the seat and fall back. The seat is about a foot
wide and extends clear across the vapor box, to one side of
which it is firmly fixed. From the dampness it swells, and if
you wished to get it out you would have to use a hammer. The
water from the spray could not get above the seat. In the
side of the box to which the seat was fixed, and about twelve
inches above it, were cut two circular holes close together,
through which those desiring to take knee baths could insert
their legs into the vapor room and rest them on the seat. All
the knee baths I ever saw were arranged in this way. The
floors were of wooden slats. The vapor baths were all of the
same temperature. You could not control, increase or diminish
their heat, except by a valve on the outside of the building;
and the only control was to shut it off altogether, or let it
run full."
Washington
testified that when the weather was cold or the wind blowing
the vapors were not so...
