Larkin v. Saltair Beach Co.

• Citation: 83 P. 686,30 Utah 86
• Decision Date: 26 December 1905
• Docket Number: 1650
• Court: Supreme Court of Utah
• Parties: LARKIN v. SALTAIR BEACH CO. [*]

83 P. 686

30 Utah 86

LARKIN v. SALTAIR BEACH CO. ^[*]

No. 1650

Supreme Court of Utah

December 26, 1905

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Action by Anna M. Larkin against the Saltair Beach Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Richards Richards & Ferry for appellant.

APPELLANT'S POINTS.

The act of Wells, who stood in loco parentis was the sole and proximate cause of the injury. A parent is responsible for the contributory faults of his agent, and, in an action for injuries causing the death of a child, the contributory negligence of the deceased, or that of the parent's agent, to whom he had intrusted the child, is a bar to the action. (1 Shearman & Redfield on Negligence, secs. 65, 70 71; Beach, Contributory Negligence [3 Ed.], sec. 131 and cases cited. Bellfontaine R. Co. v. Snyder, 18 Ohio St. 399, 24 Ohio St. 670.)

"A parent may recover for benefits reasonably to be expected from the child after majority, but a loss of service, as such, with a compensation based upon the probable earnings has no place in the making up of damages." (Beaman v. Martha Washington Co., 23 Utah 139.)

The giving of contradictory and inconsistent instructions is error. (Konold v. R. G. W. Ry. Co., 21 Utah 399.)

"A bill of exceptions or statement may be settled and certified by the judge before whom the case was tried after his term of office has expired." (Finn v. Spagnoli, 67 Cal 331; Leach v. Aitken, 91 Cal. 485; Depeaux's Estate, 118 Cal. 523; Sterling v. Wagner, 31 P. 1032; Railroad v. Ragdale, 51 Miss. 447, 451; Fellows v. Tait, 14 Wis. 156; People v. Judge of Superior Ct., 40 Mich. 630.)

C. S. Price and W. M. McCrea (W. H. King of counsel) for respondent.

RESPONDENT'S POINTS.

One maintaining a bathing resort on the shore of a natural body of water, to which he invites the public, must use reasonable care to keep the bottom free from anything which may injure them. (Boyse v. Union P. Ry. Co., 8 Utah 353; Dinnihan v. Lake Ontario Beach Co., 8 A.D. 509.)

Persons conducting bathing resorts frequented by a great number of people should, in the exercise of ordinary care, keep some one on duty to supervise bathers and rescue any apparently in danger. (Brotherton v. Manhattan Beach Imp. Co., 50 Neb. 214, 33 L.R.A. 598.)

If the owner or occupier of land, either directly or by implication, induces persons to come upon his premises, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that persons there by his invitation shall not be injured by them, or in their use for the purpose for which the invitation was extended." (Hart v. Washington Park Club, 157 Ill. 9, 29 L.R.A. 492; Richmond etc. Ry. Co. v. Moore [Virginia 1897], 37 L.R.A. 258; Thompson v. Street Ry. Co., 170 Mass. 577, 40 L.R.A. 345; Sebeck v. Platdeutsche Volkfest Verein [N. J.], 50 L.R.A. 199; Conradt v. Clauve, 93 Ind. 476, 47 Am. Rep. 388; Peckett v. Bergen Beach Co., 60 N.Y.S. 966; Cooley on Torts, 605; Breeze v. Powers, 80 Mich. 172; York v. Pacific & L. N. Ry. [Idaho], 9 P. 1042; 1 Thompson on Negligence [2 Ed.], 916; Dunn v. Brown County Agr. Society [Ohio], 1 L.R.A. 754; Francis v. Cockrell, 5 Law Rep. [Queen's Bench] 184.)

"A party has a right upon cross-examination to draw out anything which would tend to contradict, weaken, modify, or explain the evidence given by the witness on his direct examination, or any inference that may result from it tending in any degree to support the opposite side of the case." (Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438, 63 P. Rep. 588; Walley v. Deseret Nat. Bank, 14 Utah 305, 47 P. 147; 3 Encyclopedia of Evidence, 874, and cases cited.)

In every case the admission of rebuttal testimony is within the discretion of the trial court. (State v. Haworth, 20 Utah 398, 69 P. Rep. 155; Neilson v. Nebo Brown Stone Co., Utah , 69 P. 289; Harrington v. Chambers, 3 Utah 94; Godbe v. Young, 1 Utah 55; Smith v. Richardson, 2 Utah 424; State v. Webb, 18 Utah 441, 56 P. 159.)

The following is the exception taken to the instruction by appellant: "Defendant excepts to paragraph No. 11 and every part thereof." This is too general and cannot be considered on appeal, except the charge is error as a whole. (Scott v. Utah Con. M. & M. Co., 18 Utah 486; Brigham City v. Crawford, 20 Utah 130; Beeman v. Martha Washington [Utah], 63 P. 631; Pool v. Southern P., 20 Utah 210; Haun v. Rio Grande, 22 Utah 346.)

"A person owing a duty towards another may be liable for injuries resulting to the latter, although the former was in the first instance no wise negligent, and although the latter, by his own negligence, has placed him in a position of danger, provided that after discovering the latter's danger, the former failed to take reasonable precautions, which, had they been taken, would have averted the injury." (Brotherton v. Manhattan Beach Co., 50 Neb. 214; Cincinnati, Hamilton & Dayton R. Co. v. Kassen, 16 L.R.A. 674; Pickett v. Wilmington & W. R. Co., 30 L.R.A. 257; Thompson v. Salt Lake Rapid Transit Co., 16 Utah 281; Philadelphia R. R. v. Hogelans, 66 Md. 149.)

"The recovery of the parent is not necessarily limited to the period of the child's minority, but the parent may recover for the benefits reasonably to be expected to be received from the child after majority." (Baman v. Martha Washington Min. Co., 63 P. 631.) The instruction complained of by appellant has ample authority to sustain its correctness. (Webb v. Rio Grande Ry., Utah , 24 P. 616; Munroe v. Dredge Co., Cal. , 24 P. 304; Beamon v. Martha Washington Min. Co., supra, and cases therein cited.

McCARTY, J., delivered the opinion of the court. STRAUP, J., concurs. BARTCH, C. J., dissenting.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

This action was brought by plaintiff, Anna M. Larkin, to recover damages for the death of her son, Roy E. Larkin, alleged to have been drowned in the waters of Great Salt Lake at the bathing resort of the defendant. The negligence complained of is that the defendant failed to provide suitable guards or life lines, or to establish or erect notices indicating the depth of the water in and about said beach, or to provide suitable and proper persons to superintend bathing in said waters, or to provide persons or appliances to rescue bathers from drowning when in danger, or to provide a person or persons and to have such person or persons present on behalf of said defendant to search for and recover any of its bathers, bathing in said waters, when in danger, and that in consequence thereof the said Roy E. Larkin was drowned while bathing in said waters. The defendant answered, denying the allegations of the plaintiff's complaint charging negligence, and alleged contributory negligence on the part of Roy E. Larkin.

The facts in the case, as disclosed by the evidence, are about as follows: During the summer season of 1903 the defendant conducted a bathing resort known as "Saltair Beach," situated on the east bank of the Great Salt Lake, a distance of about fourteen miles from Salt Lake City. It is admitted the defendant generally invited the public to accept the facilities for bathing at said resort for hire. The resort consisted of a large pavilion and bathrooms erected on piling set out some distance in the lake. The bathrooms commenced at the pavilion, and extended about seven hundred feet in a northwesterly direction into the lake. There was no water under the pavilion itself, and none for some distance out to the west. At the point where the bathhouses ended the water was about six inches deep, and the bathers were usually conveyed from this point by means of a raft operated by the defendant to a pulley frame or "float stand" about one thousand feet out in the lake from the bathhouses, and at a point where the water was about three and one-half feet in depth, and three hundred feet further out in the lake in a westerly and northwesterly direction the water was five and one-half feet deep. The plaintiff at the time of the suit had been a resident of Salt Lake City for seven years and was without means of support other than her own efforts and the assistance of her three children. The eldest, aged twenty years, was in poor health; Roy, the deceased was fourteen years old; and the youngest was eight years of age. Roy was kind and obedient to his mother, and was a boy of good habits. For three years he had been employed, and had given his earnings or wages of $ 5 per week to his mother. On July 23, 1903, plaintiff and deceased in company with several of their friends, went to Saltair Beach, leaving Salt Lake City about 2:20 o'clock in the afternoon, and arriving at the resort at about 2:55 p. m. Soon after they reached defendant's pavilion the deceased and two other members of the party, Ross Wells and Miss Pomeroy, purchased bathing tickets, each paying therefor the sum of twenty-five cents. They thereupon went to the bathrooms provided by defendant and proceeded to bathe in the waters of defendant's resort. They waded out through the shallow water from the end of the pier or bathrooms parallel with the cable to the float stand, and when the party had reached that point they lay down in the water and proceeded to float, forming what the witnesses call a "chain." Ross Wells, who was a good swimmer and who had frequently bathed at defendant's resort, was in the lead, and supported deceased by his feet, which were placed under the arms of the latter. Miss Pomeroy, who was also able to swim and was familiar with the resort, followed with the feet of deceased under her arms. Roy Larkin, the deceased, could not swim, and had never been in bathing at defendant's resort before. There were about fifty or sixty people bathing in the vicinity of the...