Johnson v. Hot Springs Land & Improvement Co.

• Decision Date: 25 May 1915
• Citation: 148 P. 1137,76 Or. 333
• Parties: JOHNSON v. HOT SPRINGS LAND & IMPROVEMENT CO.
• Court: Oregon Supreme Court

148 P. 1137

76 Or. 333

JOHNSON v. HOT SPRINGS LAND & IMPROVEMENT CO.

Supreme Court of Oregon

May 25, 1915

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Action by Rasmus Johnson, as administrator, against the Hot Springs Land & Improvement Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The defendant maintains a natatorium which is open to the public for swimming, diving, and bathing for hire. Arthur Johnson dived off a springboard into the swimming pool, struck his head on the bottom, was seriously injured, and thereafter died from the effects of the injury so received. Charging that the defendant was guilty of negligence causing the injury and consequent death of Arthur Johnson, his administrator commenced this action to recover damages.

The complaint alleges, in substance, that the natatorium was held out to the public as a safe and suitable place for bathing swimming, and diving, and that a springboard was maintained as an inducement to the patrons of the place to dive in the swimming tank; that the water was less than four feet in depth, and was so shallow as to constitute a dangerous place for swimming and diving; that the agents of the defendant failed to warn Arthur Johnson that on account of the shallowness it was dangerous to dive into the water, but that, on the contrary, they told and assured him that the water was deep enough to dive in from the springboard; that the deceased, at the time of the injury, was unfamiliar with the premises, and did not know the risk of diving; and that he relied upon the assurance of the defendant that the swimming tank was a safe place in which to dive, and also upon the fact that the defendant rented him a bathing suit and failed to warn him of any danger of diving.

After denying culpability, the answer alleges that the floor of the tank is on an inclined plane, so that, when the tank is filled, the depth of the water is graduated from about four feet in one end to about seven feet in the other end of the pool; that because of the quality of the water the bottom is distinctly visible even to a casual observer; that for sanitary reasons the tank is frequently emptied, cleaned, and then refilled; and that the depth of the water was plainly apparent to the deceased. The answer further alleges that the defendant had posted signs in conspicuous places warning all persons that if they dived in the plunge they did so at their own risk; that Arthur Johnson had knowledge of such warning and assumed the risk of diving from the springboard; and that the injury was caused by the negligence of the deceased.

On motion of defendant, judgment of a nonsuit was given against the plaintiff, who then appealed.

C. O Hindman and Wm. H. Packwood, Jr., both of Baker, for appellant. Joseph J. Heilner and Wm. Smith, both of Baker for respondent.

HARRIS J. (after stating the facts as above).

The testimony will be recounted before attempting to determine the soundness of the ruling made by the trial court. The deceased was aged about 19 years [76 Or. 336] and 3 months on June 6, 1913, when injured. He had worked about 5 years in box factories, was of ordinary intelligence, could read English, was practically a grown man, was a good swimmer and diver, and had been in the plunge two and perhaps more times previous to the accident. Having gone to the natatorium, accompanied by three friends, Walter Murphy, Ray Peck, and Louin Halvorsen, for the purpose of using the tank, Johnson and his companions rented bathing suits from an employé of the defendant, and at that time, one of the party having inquired about the depth of the water, they were told by the employé mentioned that the water was shallow, and was 3 to 3 1/2 feet deep, but that it was coming in fast, and it would not be long until the tank was full. They were neither told that the pool was safe for diving nor warned that it was unsafe. The shallowness of the water being apparent, they sat around and waited "for the water to fill up." The springboard extended about 5 or 5 1/2 feet from the bank, was more than 2 feet above the surface of the water at the time of the injury, and was located at the deeper end of the pool about 80 or 90 feet distant from the place at the opposite end of the tank, where the defendant kept the bathing suits for rent, and in plain view of the employé in charge of the suits.

After waiting about 20 minutes, Johnson and his three friends went to the dressing room, and, having put on bathing suits, they walked to the deeper end of the tank, and there entered the water by diving in, after having passed a painted, but somewhat dimmed, sign which was designed to give warning that, "Persons diving do so at their own risk." There is no evidence that Johnson observed the sign at any time, although Peck and Halvorsen had seen it on previous occasions. Murphy, Peck, and Halvorsen each testified that after entering the water and by standing up in it the depth was found to be between 3 and 3 1/2 feet, but no one remembered having seen Johnson standing up in the water, although they were together in plain view of each other all the time. They had been swimming and diving about 15 minutes. Peck and Halvorsen each had dived off the bank three or four times, and Johnson had done the same thing twice. Murphy had dived off the springboard three or four times before Johnson dived off the springboard. Halvorsen testified:

That he saw Johnson dive in. "He stood upon the board. I don't know, in some way he must have lost his balance. He was going to make a long dive, to make it shallow in the water; and in some way, when he went to spring, his feet kind of went out, and he

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