John v. City of St. Paul
| Decision Date | 13 December 1929 |
| Docket Number | 27,564 |
| Citation | 228 N.W. 170,179 Minn. 12 |
| Parties | ROY ST. JOHN v. CITY OF ST. PAUL |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover damages for an injury sustained by plaintiff in diving from a springboard at one of defendant's bathing beaches. The court directed a verdict for defendant, and plaintiff appealed from an order, Hanft, J. denying his motion for a new trial. Affirmed.
Action against city for injuries.
Action to recover for injuries received at a bathing beach maintained by the city in one of its public parks. It is held:
City was not negligent.
1. The evidence fails to show that plaintiff's injuries were caused by any negligence of the city.
And was performing governmental function.
2. And even assuming that negligence were proved, no liability would follow for in maintaining such a beach the city was discharging a governmental function in the interest of public health and welfare; and the charge of a small fee for the use of a bathing suit and other conveniences does not subject the city to liability where otherwise no liability exists.
Municipal Corporations, 43 C.J. § 1939 p. 1173 n. 40; § 2037 p. 1274 n. 35.
See note in 51 A.L.R. 370; 57 A.L.R. 406; 19 R.C.L. 1130; 7 R.C.L. Supp. 654.
O J. Smith, for appellant.
Eugene M. O'Neill and Lewis L. Anderson, for respondent.
Plaintiff appeals from the order denying a new trial, a verdict for defendant having been directed.
The evidence shows this in substance: The city of St. Paul maintains a public park in which is Lake Phalen. A part of the lake and beach is set apart for bathing and provided with diving scaffolds and boards. Anyone may make use of these facilities free of charge. Adjacent to the beach is a bathhouse where bathing suits, towels and lockers may be rented and soap purchased from the city. In the afternoon of an early September day, 1927, plaintiff went to this bathing beach, rented a bathing suit, towel and locker, and bought a piece of soap. After putting on the bathing suit he got up on the diving board, placed about 20 feet above the surface of the water, and dived. As he struck the water his head came in contact with some sharp substance which cut an inch gash in the scalp, for which he seeks damages from the city. He did not strike bottom. He does not know what he struck but thinks it was below the surface. The court directed a verdict in favor of defendant on the ground that negligence was not proved, and on the further ground that in the maintenance of the bathing beach the defendant was performing a governmental function and not liable for negligence in its discharge.
It is clear from plaintiff's own story that there was no negligence shown in the location of the diving board at too shallow a place so as to endanger divers from contact with the bottom of the lake. And it would seem that one who desires to hold another for negligence should show something more than a hurt. Plaintiff made no effort whatever at the trial to enlighten the jury as to what object cut him whether it was stationary or floating, animate or inanimate. Crowds are usually large at bathing beaches in our cities on warm Sunday afternoons, and the suggestion is near at hand that it ought not to have been difficult for plaintiff to have obtained some testimony as to what he hit. We think the court was right in holding that the evidence furnished no basis for charging the defendant with negligence, there being nothing to indicate to the jury what caused the injury. The res ipsa loquitur rule cannot be applicable to a situation of this kind. Unless the water in the lake was too much affected by the wind or roiled by the stirring up of the bottom by other bathers, plaintiff, while on the diving board at some altitude, could see obstructions or floating objects some distance below the surface. There was no evidence as to these or other matters relating to conditions, or accounting for the absence of any showing in respect thereto. He was at least in as good position as was defendant to show or account for the cause of his injury. It cannot be claimed that the city is liable for maintaining a nuisance without proof of what the nuisance consisted.
The court below also ruled that defendant in the maintenance of bathing facilities in a public park was discharging a governmental function and hence not responsible for negligence to those making use of the same. We so held in Emmons v. City of Virginia, 152 Minn. 295, 188 N.W 561, 29 A.L.R. 860. Plaintiff seeks to distinguish that case from the one at bar on the ground that in the former no charge was made for the use of the slide maintained in the park for public amusement, while here plaintiff paid 25 or 30 cents for the use of the bathing suit, towel, locker and soap. But none of these items caused any injury to him. The lake and the diving scaffold and board were for the free use of plaintiff. Had he come with his own bathing suit, towel and soap he could have dived and made use of the lake without any charge whatever. No distinction as to right of recovery can or ought to be made...
To continue reading
Request your trial