Johnson v. City of Alcoa

• Decision Date: 10 August 1940
• Parties: JOHNSON v. CITY OF ALCOA.
• Court: Tennessee Supreme Court

Page 796

145 S.W.2d 796

JOHNSON v. CITY OF ALCOA.

Court of Appeals of Tennessee, Eastern Section.

August 10, 1940.

Certiorari Denied by Supreme Court December 14, 1940.

Appeal in Error from Circuit Court, Blount County; Pat Quinn, Judge.

Actions, tried together, by Hobart Johnson, as next friend of his infant son, Frank Johnson, against the City of Alcoa to recover damages for personal injuries to such son, and in plaintiff's own right against such city to recover medical expenses incident to such injuries. Judgment for defendant, and plaintiff appeals in error.

Affirmed.

Kennerly & Key, of Knoxville, for plaintiff in error.

Goddard & Gamble, of Maryville, and R. R. Kramer, of Knoxville, for defendant in error.

PORTRUM, Judge.

These are two cases tried together growing out of the same cause of action; the father, Hobart Johnson, sues as next friend of his infant son, Frank Johnson, to recover damages for personal injuries, and in his own right to recover medical expenses incident to the injury of the son sustained in a public swimming pool owned and operated by the City of Alcoa. The boy, while shallow diving at the edge of the pool struck his head against an intake pipe covered with concrete and sustained serious injuries necessitating the expense of medical attention.

The declaration contains two counts, the first designating the physical condition of the pool and its maintenance and operation in such condition a public nuisance; the second, that the city in operating the pool was engaged in a proprietary function and not a governmental function, and it was liable for the acts of negligence of its officers and agents in constructing and negligently maintaining the pool with the intake pipe placed in a dangerous position. Upon demurrer the second count was stricken from the declaration and the case permitted to go to the jury upon the first count.

At the conclusion of the evidence the trial judge sustained the motion of the defendant for peremptory instructions for the reason, first, that no nuisance had been established by the proof, and second, that the plaintiff's son was guilty of such gross contributory negligence as barred his recovery. The plaintiff seeks now a review of this holding.

The swimming pool in question was constructed by the city in the fall of 1930 and first opened for business during the summer of 1931. It was designed and constructed under the supervision of the defendant's city manager.

The pool was constructed by damming up a small stream and excavating its banks creating a lake of about 300 feet in length, with irregular banks which are at the widest point 80 feet in width. There is a paved walkway around the pool; the sides are walled up with concrete and some places with stone and concrete, and the entire bottom is covered with concrete. The bottom slopes from the edges to the center, in some places providing different depths for the patrons, and at other places the water is made deep at the wall on the bank to accommodate divers and deep water swimmers.

The principal intake pipe enters above the rim of the pool through an ornament in the shape of a fish head and the water pours into the fish's mouth and into the pool, but the pipe which inflicted the injury enters at the side and at the bottom of the pool which was about 14 inches below the water level at the time of the accident. The rim or wall of the pool at this place was about two to three feet in height. The bottom of the pool at this place slopes off from the wall in an open fan-shape increasing the depth of about 26 inches of water from the wall gradually toward the center of the lake. This afforded an adequate depth for small children. Near this intake pipe was a slide used by children to slide down into the water which was supported by a framework consisting of stilts or legs extending into the water. This intake pipe was a 12-inch pipe, entering on the floor of the pool about 26 inches from the top of the rim or wall, and it extended for six feet out into the pool sloping with the floor, a gradual slope of about four inches, which indicates the degree of the slope of the floor. This pipe was covered with concrete and what is described as a "butterfly" form, that is concrete was placed at the side and smoothed over the top and sides, making a mound of concrete covering the pipe. The pipe at the bank or rim was 14 inches under the water at the time of the accident, and at its mouth six feet away it was eighteen inches under the water, and the 12-inch pipe was resting on the bottom of the pool, which description pictures the condition existing at the time of the accident.

This pipe was used only for the purpose of letting unfiltered water from a higher lake into the pool in the wintertime to prevent freezing of the concrete. It was larger than necessary for a 2-inch nipple, or cutoff, had been placed in the mouth of the pipe and the mouth filled and plugged up with brick and concrete. The pipe could have served but one benefit, and that was to provide an additional pressure upon the water flowing through the 2-inch nipple.

As stated, the bottom slopes away in an open fan-shape and approximately 10 or 12 feet from the pipe the bottom of the pool at the rim or wall had acquired a depth of six feet, which is indicated upon a board placed at the edge of the wall where there was located a small diving board. The wall and rim at this place was made of concrete and was circular in form. In front of this pipe and built upon the bottom of the pool approximately 20 feet from the rim of the pool was a large diving structure with the ladder immediately opposite the mouth of the pipe, which rested upon the bottom of the pool and used by the patrons in ascending from the bottom and the water to the platform above and to the diving board upon the opposite side of the structure. The depth of the water permitted the patrons of small size to gain the ladder and mount upon the diving structure. The surface of the lake was well lighted by numerous large electric lights, but there is a dispute as to whether the intake pipe could be seen from the rim on the night of the accident because of the ripples upon the water. This conflict makes it necessary for this court to conclude that the intake pipe at the time of the accident was not visible from the rim.

Over the door of the entrance from the bath house to the pool was a large sign, about 2-½ feet in length and about 15 inches wide with large letters printed thereon as follows: "Do not dive in shallow water or scuffle about the pool." On a pole near where this intake pipe enters the pool was another sign as follows: "Do not dive in shallow water."

Frank Johnson had been to and swam in this pool before the night of the accident; he was sixteen and one-half years of age, an expert swimmer, and he was familiar with the physical condition, and the sign prohibiting diving in shallow water, or he should have been, and is chargeable with this knowledge, since the ordinary prudent person would have acquired the knowledge. "* * * Plaintiff's contributory negligence was not determined by...