Hahn v. Perkins
| Decision Date | 07 April 1948 |
| Docket Number | 306 |
| Citation | 46 S.E.2d 854,228 N.C. 727 |
| Parties | HAHN v. PERKINS et al. |
| Court | North Carolina Supreme Court |
The plaintiff, N. C. Hahn, as administrator, sought to recover damages of the defendants, Ernest L. Perkins and M. Gaius Link, upon a complaint charging that his intestate Norman Cecil Hahr., suffered death as the proximate result of the wrongful act, neglect, or default of the defendants while the deceased was patronizing a public swimming pool conducted by the defendants for profit at a point on Wilsonhs Creek in Caldwell County known as Brown Mountain Beach. G.S. s 28-173. The plaintiff undertook to sustain his alleged cause of action at the trial by the facts set forth below.
For the most part, Wilson's Creek, a natural watercourse, is both shallow and swife. It is impounded by a small dam near the foot of Brown Mountain in Caldwell County. After being released from this artificial pond through a mill-race, the waters of the creek run rapidly over a ledge of slippery rocks and suddenly broaden, forming a relatively still and wide pool, varying in depth from a few inches to twelve feet.
During the summer of 1942, the defendants controlled this pool and the adjacent land. Here they conducted a public swimming pool and public picnic grounds for personal profit. To protect their patrons in the use of the pool, the defendants stationed life guards in positions where they could supervise the bathers, and separated the shallow and deep waters in the central and lower parts of the pool by barriers consisting of ropes and floating barrels. They did not, however, erect or maintain any warning signs in the upper reaches of the pool. At one place in this area some ten feet downstream from the reef of rocks, the bottom dropped abruptly from extremely shallow water to a depth of twelve feet.
On July 19, 1942, the plaintiff's intestate, a bright boy twelve years of age, went to the premises of the defendants as a patron with a group of five relatives including his mother and an adult brother-in-law. It does not appear that he had ever been there before. He was unable to swim but this fact was not communicated to the defendants or their employees. He wore a bathing suit so that he might wade in the shallow portions of the pool.
Shortly before three o'clock in the afternoon, the boy and his mother left the edge of the pool with a view to buying cold drinks at a nearby refreshment stand operated by the defendants. At this time both the pool and the land lying between it and the stand were crowded with people. The mother testified that there were then 'three or four hundred people on the grounds and in the water. ' While they were going towards the refreshment stand, the boy suddenly pushed ahead of his mother and vanished in the crowd near the stand. This was the last time he was seen alive by any of the witnesses.
The mother soon reported the boy's disappearance to his brother-in-law, and they spent the remainder of the afternoon looking for him in vain among the crowd in the pool and on its banks. The testimony presented by the plaintiff shows that the defendants kept at least two life guards on duty at all times throughout the afternoon in positions where they could watch the pool and supervise persons bathing therein. Sometime after three o'clock and again an hour later, the mother told one of the life guards stationed at the pool that the boy was missing, and suggested that he notify the of that fact. The life guard replied that 'he knew that he would not be able to attract the attention of the people in the pool' and remained at his post, observing the bathers. The mother did not intimate to the life guard on either occasion that she believed that her son was in the water or that she had any reason to suspect that he had sustained an accident.
About five-thirty o'clock in the afternoon, the mother and brother-in-law finally became apprehensive on account of their failure to locate the intestate among the dwindling crowds in the pool and along the banks. They then notified the defendants personally that the boy was missing and that they entertained fears for his safety. Thereupon a general alarm was given, and an organized search of the creek and of the adjacent lands was begun. The searchers persevered in their undertaking until seven o'clock the next morning when the dead body of the intestate was found submerged in approximately twelve feet of water in the upper reaches of the pool, some ten feet below the reef of slippery rocks. There was a bruised place 'about the size of half a dollar on the boy's forehead, or close to his eye. ' The evidence did not reveal the nature or extent of the injury reflected by the bruise, or whether there was any water in the lifeless lungs of the deceased. No opinion testimony was offered in regard to the cause of death.
The action was dismissed in the court below upon an involuntary judgment of nonsuit under G.S. s 1-183 after all the evidence on both sides was in, and the plaintiff appealed.
Willaims & Whisnant and Hal B. Adams, all of Lenoir, for plaintiff, appellant.
W. H. Strickland, of Lenoir, and J. E. Butler, of Morganton, for defendants, appellees.
The plaintiff relied upon circumstantial evidence to make out his case against the defendants. Hence, his appeal raises this question: When interpreted most favorably for the plaintiff were the circumstances shown on the trial sufficient to justify a reasonable inference that the death of Norman Cecil Hahn was the proximate result of the alleged wrongful act, neglect, or default of the defendants? Corum v. Tobacco Co., 205 N.C....
To continue reading
Request your trial