Louisville Water Co. v. Bowers
| Decision Date | 31 October 1933 |
| Citation | 251 Ky. 71 |
| Parties | Louisville Water Co. v. Bowers. |
| Court | United States State Supreme Court — District of Kentucky |
1. Theaters and Shows. — Proprietor maintaining public swimming and diving pool for hire must use ordinary care to see that pool contains sufficient water to make it reasonably safe for diving, or warn patrons of danger of diving while pool is being filled.
2. Theaters and Shows. — Proprietor of public swimming pool for hire not having sufficient water in pool to make diving safe, and not warning patrons of danger of diving, held negligent, as regards liability for patron's injuries from diving into shallow water.
3. Theaters and Shows. — As regards patron's injuries from diving into partly filled swimming pool, doctrine of assumed risk should not preclude recovery unless patron voluntarily subjects himself to peril known, or plainly observable, by ordinarily prudent person in patron's situation.
4. Theaters and Shows. — Patron of public place of amusement for hire need not make critical examination of premises to determine safety, but may assume that persons in charge have provided safe place and taken proper precautions for his safety.
5. Theaters and Shows. — Whether patron diving into partly filled public swimming pool assumed risk of injuries from striking head on bottom of pool held for jury.
6. Trial. — Instructions are law of case, and verdict contrary to instructions is contrary to law.
7. Trial. — Where instruction regarding patron's duty to ascertain depth of water before diving into swimming pool did not make such duty absolute, verdict for patron sustaining injuries held not so contrary to instruction as to require new trial.
Instruction was, in substance, that it was the duty of the patron in diving into any portion of the swimming pool to exercise ordinary care generally for his own safety, and that such duty included the duty of ascertaining the depth of the water in the pool before diving.
Appeal from Jefferson Circuit Court
CRAWFORD, MIDDLETON, MILNER & SEELBACH for appellant.
DAVID R. CASTLEMAN for appellee.
Affirming.
This is an appeal from a judgment for $1,635.80 for personal injuries.
The facts are: Appellant conducts what is known as the Crescent Hill Swimming Pool, and charges a fee for its use by the public. The pool is about 270 feet long, and its depth varies from 3 feet at the shallow end to 8 feet at the deep end when the pool is filled. The sides of the pool are of white tile, and the bottom is green in color. When the pool is full and up to the overflow the water level is from 6 to 8 inches below the walkway encircling the pool. At various places along the edge there are figures along the sides of the pool between the water and the walkway showing the depth of the water. These figures are large enough to be seen from across the pool.
According to his evidence appellee appeared at the pool about 1:00 o'clock on June 9, 1931, accompanied by his wife, child, and sister-in-law. After putting on his bathing suit he walked from the bathhouse along the south edge of the pool to the deep end where he climbed down into the water, swam across the pool, and climbed up the ladder on the other side. He got out in the 8-foot water, and nothing happened to call his attention to the fact that the water was shallow, or that the pool was filling, or was unusual in any way. He did not see any guards or employees of the pool, and there were no signs or warnings that the pool was not full of water or was filling. He could not tell how deep the water was on account of the bottom being the same color as the water, which was green in appearance. After going a few feet west of the middle of the pool, and opposite a point where there was a mark of 5 feet on the side of the pool, he dived head first into the pool and struck his head on the bottom. He had been swimming for fifteen years and had been in the pool once before about two years before the accident.
According to the witnesses for appellant it had been the custom ever since the pool was opened to permit people to go in while the pool was being filled, and many of the people came for sun baths rather than for swimming. One of them saw Bowers dive in the pool at a point about 30 feet west of the center and in the shallow end. There were some women and children in the pool at that place, and you could readily tell the depth of the water by looking at the people. The pool was being filled at the time and the depth of the water at the place of the accident was from 1 1/2 to 2 feet.
The first ground urged for reversal is that appellant was entitled to a peremptory on the ground that appellee assumed the risk. The pool was maintained for public use, and an admission fee was charged. It was used both for swimming and diving, and it was the duty of appellant either to use ordinary care to see that there was sufficient water in the pool to make it reasonably safe for...
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