Hecht v. Des Moines Playground and Recreation Ass'n
| Citation | 287 N.W. 259,227 Iowa 81 |
| Decision Date | 01 August 1939 |
| Docket Number | 44805. |
| Parties | HECHT v. DES MOINES PLAYGROUND & RECREATION ASS'N. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Polk County; Loy Ladd, Judge.
Action at law for damages suffered by the estate of plaintiff's intestate because of his death by drowning in a swimming pool operated by defendant. Plaintiff has appealed from a judgment for defendant for costs, entered on a verdict directed by the court.
The judgment is affirmed.
The mere fact that person drowned in swimming pool does not establish negligence of proprietor thereof under res ipsa loquitur doctrine, in view of inherent dangers of body of deep water.
Judson E. Piper, of Des Moines, for appellant.
Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellee.
The defendant association is a corporation, not for pecuniary profit, organized in 1918, and existing, under the provisions of Chapter 2, of Title IX, of the Code of 1897, § 1642 et seq., as amended. It is eleemosynary in its nature and purposes, and was organized for the maintenance and operation of playgrounds and recreation centers in the city of Des Moines. It issued no stock, and pays no dividends. Any income, over operating expenses, has been used for recreational and charitable purposes. Its directors and other officers receive no pay for their services. Since 1922, the defendant had operated the swimming pool at Camp Dodge, under lease from the State of Iowa, the owner of the pool and grounds. During the year 1938, the operation of this pool was the only recreational activity of the defendant. Miss Kathryn Krieg, as superintendent of recreation in the city of Des Moines, under the Department of Public Affairs, has been, in a rather ex officio capacity, the executive secretary for the defendant, although the city has had nothing to do with the operation of the swimming pool. As executive secretary she was in general charge of the operation of the association under instructions from its officers and directors. She received no compensation from the association. Those in active charge of the operation of the pool have been employed by a committee of the association. For use of the pool, there was an admission charge of twenty five cents for adults which included all over twelve years old, and ten cents for those who were twelve years or younger. For this charge each one was entitled to use the pool and its facilities as long and as often, as they cared to from ten o'clock in the morning till ten o'clock at night.
The pool is of cement construction throughout, including the bottom, sides, and a walk completely around it. It is 350 feet long, east and west, and 150 feet wide, north and south. At the east end the depth of the water, when the pool is in use, is about 18 inches, and gradually deepens until it is 3 feet deep at a distance of 150 feet from the east end. At this point a heavy rope cable, supported on wooden, log-like floats, equally spaced, is stretched across the pool. For about 75 feet further west the water deepens until it is 6 feet deep at that distance. At this point, another cable, as described, is stretched across. From this point the water deepens until it is 9 feet deep at the west end. In the center of the pool, north and south, and about 50 feet from the west end is a wooden raft, or rather a stationary platform, 16 by 29 feet. The entire pool is surrounded by a 5-foot wire mesh fence, with three gates in the west side of it. Cement walks lead to each gate from a large bathhouse, 81 feet west of the pool. In it were the dressing rooms, check rooms, shower baths, offices, etc. Twenty-four feet to the right of the middle gate near the edge of the west end of the pool was a wooden block. Six feet further to the right was an elevated, canopied lifeguard stand. Five feet further was a spring board, consisting of a heavy plank 14 feet long, anchored to the top of the end wall of the pool and the abutting concrete walk. The spring board extended at a slight upward pitch over the pool. The body of the deceased was found at the bottom of the pool, in 9 feet of water, about 5 or 10 feet beyond the end of the board. Still further to the right of the spring board, a distance of 32 feet, and at the curved southwest corner of the pool, is a second wooden block. It was from about this point that Norman Bray, the thirteen year old tentmate of the deceased, let himself into the pool and swam diagonally about 75 feet to the raft. Fifty feet further east from this block, on the south side of the pool, was a high diving tower, with diving boards or platforms at different heights. At the top of this tower were two large capital lettered, painted, four line signs: These signs were at right angles to the pool, with one facing east and the other west. On each side of the tower on the walk, at its bottom, was the following sign, in black paint: " 9 ft." Thirty-seven feet east of this high diving tower was an elevated life guard stand, and 77 feet further east was another such stand.
Immediately across the pool from the high diving tower, just referred to, and on the north side, was a similar high diving tower. To the left of the middle entrance from the bath house, and twenty seven feet north was another low diving board, then a guard stand, then another low spring board, and at the curved northwest corner of the pool was the ten-foot diving tower. The water in the pool came within about a foot of the top of the walls of the pool. On the uncovered space of the walls between the surface of the water and the top of the wall were black painted signs indicating the varying depths, foot by foot, from the shallowest depth to nine feet. On the surface of the surrounding wall or walk were similar depth signs. These signs were visible and readable to one from almost any place within or about the pool. Just above the surface of the water and all around the pool was a continuous pipe hand-hold fastened to the wall. Such were the existing conditions on July 14, 1938, when the deceased was drowned. He was then a few days less than eleven years and four months old. He had lived in Des Moines until he was about eight years old, when he went with his parents to a farm a short distance east of Des Moines, where he lived at his death. He was a strong healthy boy, slightly over five feet two inches tall. He took part in some of the farm work. His grades in school were above the average. He excelled in geography, history, art, spelling and arithmetic. In March, 1938, he had joined the Altoona 4-H Club, which had about forty members. The organizer and leader of this particular group was Eugene Ford, a man energetic in youth activities. There were seventeen of these splendid groups in the county under the leadership of Dwight Booth. In 1937 the county membership had an outing at Camp Dodge. A similar three day outing was begun on July 14, 1938. About one hundred members from the county attended, fourteen of whom were from the Altoona group. The deceased was of this latter group, which was in charge of Ford. Booth was in general charge at the camp. Each member paid to Booth $2.50 to cover all charges, including swimming privileges. The defendant made a group rate of ten cents to each member for daily admission to the pool. Prior to the outing, Booth had asked the defendant to furnish swimming instructors to the group, but Miss Krieg directed him to the Red Cross, which specially supplied the group with two competent swimming instructors and life guards. These two had acted in the same capacity at the 4-H girls' outing, the week before. Booth had arranged with these two to be on hand at 11 o'clock in the forenoon of the 14th, to give instructions to the boys before going into the water. Booth had given each boy a ticket for the pool when he registered. These tickets were distinguishable from the general tickets in use.
Mr. Kerr, a school superintendent, was in general charge of the pool for the defendant. Three life guards were in the regular employ of the defendant, and worked in shifts. Additional guards, up to ten, were available for Sunday and holiday crowds. On the morning in question, Burchard, a competent life guard was on duty from 10 o'clock in the forenoon until 1 o'clock in the afternoon. He was seated under a large umbrella like sun shade, just inside the fence, at the middle gate, a little less than twenty feet from the west, or deep end of the pool. He took the tickets of those entering the enclosure. Kerr knew in a general way of the arrangements which Booth had made with the two Red Cross guards. Three groups of girl scouts, with their own special instructors and life guards, were using the pool that morning between 10 and 11 o'clock. Two of these groups were in the shallow water, and one group was in the deep water between the raft and the west end, and in the vicinity of the low diving boards. In addition to these groups, whose number was not disclosed, were about twenty-five others using the pool. Among the latter were perhaps a half dozen 4-H boys who had entered the water before eleven o'clock. Among them also was a group of six boys and girls, under the chaperonage of one of the mothers, who had gone from the low diving board to the high diving tower on the south side. Fifteen year old Hugh Bottelson was in this group, and had entered the water about 10:30 o'clock.
The deceased, with his mother, an older brother, and a neighbor boy arrived at the camp about 10:00 o'clock. He placed his luggage in a tent with a neighbor boy, and together they went to the registration tent of Booth and paid their dues and received tickets for the pool. They went to the bath house where Kerr showed them to...
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