Heino v. City of Grand Rapids

Decision Date18 July 1918
Docket NumberNo. 22.,22.
PartiesHEINO v. CITY OF GRAND RAPIDS.
CourtMichigan Supreme Court

202 Mich. 363
168 N.W. 512

HEINO
v.
CITY OF GRAND RAPIDS.

No. 22.

Supreme Court of Michigan.

July 18, 1918.


Error to Superior Court of Grand Rapids.

Action by Alfred Heino, as administrator of Roy Heino, deceased, against the City of Grand Rapids. Judgment for defendant on directed verdict, and plaintiff brings error. Affirmed.

Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

[168 N.W. 513]

G. A. Wolf and Ellis & Ellis, all of Grand Rapids, for appellant.

Ganson Taggart, City Atty., and C. A. Watt, Deputy City Atty., both of Grand Rapids, for appellee.


STEERE, J.

On August 10, 1915, Roy Heino, a boy eight years and three months of age, lost his life, presumably by drowning, in a public swimming and bathing pool maintained by defendant in one of its city parks. Alfred Heino, his father, brought this action as administrator to recover damages for his death, claiming it was attributable to negligence on the part of the city in not properly guarding the safety of children permitted free use of the pool.

The case was tried in the superior court of Grand Rapids before a jury, and a verdict directed in favor of defendant, the trial court holding that in providing and maintaining the bathing pool for the free use and recreation of its inhabitants the city was acting under legislative authority and discharging a governmental duty in performance of which it was not liable for damages resulting from negligent acts of its servants or employés, and that in any event no actionable negligence was shown, as there were no witnesses to the drowning, both the cause and manner of its occurrence being purely speculative.

The pool in question was a sheet of shallow water, from 350 to 360 feet long and about 175 feet across at the widest place, located in a basin on the southwesterly side of the park, where its level was maintained by a controlled supply of water from two small creeks which could be led into or diverted from it. The contour of that portion of the park afforded natural facilities for its construction by a gradual slope of the ground to a depression in which water from the creeks could be impounded to create a pool of the size and depth desired by building a semicircular wall or dam of concrete 55 feet in length at the westerly or lower end, near which the water was deepest, gradually shallowing towards the shores and back to the east. The superintendent of parks, who stated he built the pool, estimated its greatest depth at between 4 and 5 feet, which he located about 10 feet back, or west, of the spillway of the dam, there being a springboard at the west end, from which he stated that he had seen men dive in there, and when they stood up their heads would be out of water. There was some conflicting evidence as to the exact depth in the deepest place. A brother testified that the water would be over deceased's head where his body was found, and he was shown to have been 4 feet 6 inches tall.

Two small buildings were provided as changing or dressing rooms for bathers, referred to as the ‘boys' house’ and the ‘girls' house,’ and different parts of the pool are mentioned as the ‘girls' side’ and the ‘boys' side.’ In the bathing season a swimming pool director, or guard, was on duty during the hours when the pool was open to the public for swimming and bathing. Many children availed themselves of the privilege in warm weather, and the record of bathers on the day of the accident was 380, of which number there were 95 boys and 20 girls in the forenoon, and 150 boys and 105 girls in the afternoon. None of them were shown to have any knowledge of just when or how the accident occurred.

Plaintiff lived near Creston Park with his family, and his children were accustomed to go swimming, or bathing, in this pool, which was constructed by the city in 1909 or 1910. They were provided with bathing suits for that purpose, and on the day of the accident five of them went over there together at about 10 o'clock in the forenoon to ‘go swimming,’ carrying their bathing suits in a basket. The oldest was a girl namel Edna, over nine years of age, Roy being the next younger, and the others respectively six, five, and two years old. They played around the park until the guard came, after which they put on their bathing clothes and went into the pool. After changing to their bathing suits at the buildings provided for that purpose they went to the east end together carrying their other clothing in the basket, which they left under a tree when they went into the water. Roy stayed with the rest in the shallow water for a short time, and while there borrowed some ‘water wings' from a girl who was with them, which he soon returned and went away, saying he was going over to the boys' side. He is not shown to have been seen alive by the other children or noticed by any one after that time, although there were also other people then in swimming, both boys and girls. When the Heino children were through swimming, or bathing, they found his dry clothing yet in the basket, but could not find him. They waited for a time and looked for him unsuccessfully, after which they went home, arriving there shortly before 12 o'clock, and told of their inability to find him. This was

[168 N.W. 514]

reported to plaintiff when he came home to dinner soon after. A search was then instituted in which others joined, and his body was found in the lower part of the pool at about 3 o'clock that afternoon. He was shown to have been an active, healthy boy in the habit of going into this pool. His age and height were stated, but whether he could swim was not disclosed.

The negligence charged was failure to maintain a rope or similar protection for the small children in the shallow end of the pool, that...

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