Lyman v. Hall

• Decision Date: 08 June 1928
• Docket Number: 25874
• Citation: 219 N.W. 902,117 Neb. 140
• Parties: EDWIN LYMAN, ADMINISTRATOR, APPELLEE, v. WALTER B. HALL, APPELLANT
• Court: Nebraska Supreme Court

219 N.W. 902

117 Neb. 140

EDWIN LYMAN, ADMINISTRATOR, APPELLEE, v. WALTER B. HALL, APPELLANT

No. 25874

Supreme Court of Nebraska

June 8, 1928

APPEAL from the district court for Hitchcock county: CHARLES E ELDRED, JUDGE. Reversed and dismissed.

Judgment reversed and action dismissed.

Butler & James and J. F. Ratcliff, for appellant.

Scott & Scott, contra.

Heard before GOSS, C. J., ROSE, GOOD, THOMPSON and HOWELL, JJ., and CLEMENTS and REDICK, District Judges.

OPINION

ROSE, J.

This is an action against the proprietor and keeper of a public bathing pool to recover damages in the sum of $ 20,200 for alleged negligence resulting in the death of Richard A Lyman. He was drowned in deep water while bathing in the pool. His father, Edwin Lyman, instituted the action as administrator of decedent's estate. Walter B. Hall is defendant, and the negligence imputed to him consists of his failure to give proper notice of the depth of water in different parts of the pool; to provide suitable guards and directors; to provide competent persons to recover and resuscitate bathers when overcome by water.

Defendant in his answer admitted that he owned and operated the bathing pool and that plaintiff's son was drowned therein, but denied the negligence charged in the petition and pleaded contributory negligence of the son as the proximate cause of his death. The reply to the answer was a general denial.

Upon a trial of the issues the jury rendered a verdict in favor of plaintiff for $ 5,000, which was reduced by remittitur to $ 3,000. From a judgment for the latter sum, defendant appealed.

The principal assignment of error assails the overruling of a motion to direct a verdict in favor of defendant on the ground that the evidence was insufficient to prove actionable negligence as the proximate cause of the bather's death.

Failure to place and maintain warning signs or notices indicating the depths of water in different parts of a public bathing pool conducted for private gain may be evidence of negligence. Beaman v. Grooms, 138 Tenn. 320, 197 S.W. 1090, L. R. A. 1918B, 305; Larkin v. Saltair Beach Co., 30 Utah 86, 3 L. R. A. n. s. 982, 83 P. 686.

A leading case on the liability for negligence in conducting for private gain a public bathing resort is Brotherton v. Manhattan Beach Improvement Co., 48 Neb. 563, 67 N.W. 479, and 50 Neb. 214. That case has been cited in many jurisdictions. The main features of the opinion were recently reduced in an illuminating note by an annotator to the following form:

"Proprietors of a bathing resort, in discharging the duty of ordinary care for the safety of patrons, may be obliged to keep some one on duty to supervise bathers and rescue any apparently in danger; and may also be held liable for negligence if, on information that a bather is missing, they are tardy in instituting search." 22 A. L. R. 636, and discussion of later cases.

The supreme court of Utah also expressed the view that proper care for the safety of bathers may require the attendance of some suitable person with the necessary appliances to effect rescues, saying:

"Not only is it the duty of the owners of bathing resorts to be prepared to rescue those who may get into danger while in bathing, but it is their duty to act with promptness, and make every reasonable effort to search for, and, if possible, recover those who are known to be missing." Larkin v. Saltair Beach Co., 30 Utah 86, 3 L. R. A. n. s. 982, 83 P. 686.

It is the duty of a bathing resort keeper who grants privileges for compensation to make reasonable provision to guard against accidents liable to befall bathers who indulge in aquatic sports for which he has provided facilities and this may require an attendant to render assistance. Decatur Amusement Park Co. v. Porter, 137 Ill.App. 448.

Ordinary care to provide a reasonably sufficient number of attendants for the protection of bathers at a public bathing resort conducted for private gain is a standard of duty in that respect. Levinski v. Cooper, 142 S.W. 959.

The duty to exercise ordinary care to protect patrons of a public bathing resort conducted for private gain does not make the proprietor an insurer of their safety. Bertalot v. Kinnare, 72 Ill.App. 52; Rom v. Huber, 93 N. J. Law, 360, 94 N. J. Law, 258; Levinski v Cooper, 142 S.W. 959.

Evidence of negligence does not of itself establish a cause of action, but in addition plaintiff must show that negligence pleaded by him was the proximate cause of the alleged injury.

With these principles of law in mind, did plaintiff prove that actionable negligence pleaded by him was the proximate cause of the bather's death? The answer depends on the evidence and the inferences from evidential facts and circumstances and requires consideration of nearly 200 pages of testimony.

Some of the material facts are not in dispute. For private gain defendant conducted a public bathing and swimming pool in what was called "Riverview Park," a resort at or near Stratton, Nebraska. Lengthwise the pool extended east and west. On or near the north bank a bath-house, a refreshment stand, a diving board, and a diving tower were located. On the south side there were swings, a spring board and a band stand. Richard A. Lyman, a boy about 16 years of age, residing at McDonald, Kansas, and a younger brother were at Riverview Park July 4, 1926. In the afternoon they rented and paid for the use of bathing suits and went into the pool. They were in and out of the water at different times. Richard was strong both mentally and physically, but he could swim very little, if any, and between 4 and 5 o'clock, or a little later, he was drowned near the center of the pool in deep water. The story disclosed by the record cannot be read without emotion, but the sufficiency of the evidence to sustain the verdict must be determined independently of sentiment or pity.

Was defendant negligent in failing to perform his duty to give notice or warning indicating the depth of the water in different places? The pool was approximately 100 feet wide and 300 feet long. It had a sandy bottom sloping from a depth of 2 1/2 feet at the west end to nearly 19 feet at the east end. There were three divisions indicated by two heavy steel cables stretched across the pool from north to south at the surface of the water. The first division was for little folks. It was 20 feet wide at the west end of the pool and near the north bank there was a sign: "Water not over 2 1/2 feet deep." The next or middle division was apparently for general bathing. It was 30 feet wide and near the north bank between the cables there was a sign "Water not over 4 1/2 feet deep." The other division was that part of the pool between the east cable and the east end. It was obviously intended for swimming, diving and other aquatic sports. In size it was...