Management Services, Inc. v. Hellman

• Decision Date: 24 August 1955
• Citation: 289 S.W.2d 711,40 Tenn.App. 127
• Parties: MANAGEMENT SERVICES, Inc., v. George HELLMAN, Jr., Adm'r, etc. 40 Tenn.App. 127, 289 S.W.2d 711
• Court: Tennessee Court of Appeals

Page 711

289 S.W.2d 711

MANAGEMENT SERVICES, Inc., v. George HELLMAN, Jr., Adm'r, etc.

40 Tenn.App. 127, 289 S.W.2d 711

Court of Appeals of Tennessee, Eastern Section.

Aug. 24, 1955 Certiorari Denied by Supreme Court Dec. 9, 1955.

[40 TENNAPP 130] Jennings, O'Neil & Jarvis, and Paul E. Parker, Knoxville, Walter C. Rothermel, Oak Ridge, for plaintiff.

Kramer, Dye, McNabb & Greenwood, Knoxville, Prince & Woodside, Oak Ridge, for defendant.

HOWARD, Judge.

Referring to the parties as they appeared below, this action was filed by the Administrator herein, George Hellman, Jr., against the defendant, Management Services, Inc., for damages for the alleged [40 TENNAPP 131] wrongful death of plaintiff's minor son, William Kent Hellman, age 8 years, who died as a result of an injury sustained under circumstances hereinafter appearing. The suit was for the use and benefit of Hellman and his wife, Mary R. Hellman, the surviving parents of the decedent.

The record discloses that prior to and on July 12, 1952, the defendant operated a large swimming pool at Oak Ridge, Tennessee, where daily during the summer season several hundred adults and children paid regular entrance fees to sun bathe and swim. The pool was hexagon shaped and was surrounded by a concrete apron several feet wide on which patrons could walk or lounge, and surrounding the entire area was a high wire mesh or cyclone fence. On the concrete apron, but located at different points around the pool, were 5 or 6 life guard towers several feet high, from which the life guards had a clear view of the pool and surroundings. On the east side of the pool near the entrance were bath houses and the two diving boards, and on the north there was a beach and grassy plot, the water in this area of the pool being shallow for small children and those who could not swim. Prior to opening the pool on June 1, 1952, the defendant closed off the western area of the pool to the public by tying ropes across the spaces of approximately 4 feet between the fence and the two westernmost life guard towers on the north and south sides of the pool. These ropes were about the size of an ordinary window sash cord and were from 3 to 3 1/2 feet above the concrete apron, and there were no signs or warnings to the public that this area had been closed off.

On the date of the accident about 4 P.M., Hellman, accompanied by his wife, their 16 year old daughter, Anna [40 TENNAPP 132] Gale, and her friend Glenda Shook, also age 16, their son, George, age 11, and the decedent, went to the defendant's swimming pool for an outing, all of them dressing in their bathing suits before leaving home, and on reaching the pool Hellman paid the required entrance fees for the entire party. After being in the water for some time the decedent, who could not swim, complained of being could and his father took him out to get a towel to put around his shoulders. Thereafter while they were standing on the concrete apron near the high diving board watching the divers, the decedent asked his father's permission to move closer (south) to the low diving board where children his age were swimming and diving, which permission was granted. Thereafter, Hellman remained near the high diving board where he could observe his wife and other members of his family on the north side of the pool. Meantime he did not see the movements of his son who stopped for only a short time at the low diving board before he started running in a westwardly direction on the concrete apron, with the apparent intention of going around the western area of the pool to the north side to join his mother, and on reaching the westernmost life guard tower he ran into the rope heretofore described, which cut off the unused portion of the pool. On striking the rope the decedent was knocked to the concrete apron, his head striking the pavement, causing him to suffer a skull fracture extending from the back of his right eye to the upper portion of his ear. Several hours after the accident other complications developed and a blood clot more than an inch in thickness formed on the child's brain. This resulted in unconsciousness and an operation followed at the Oak Ridge Hospital, during which he died at 2 A.M. on the morning of July 13th.

[40 TENNAPP 133] Plaintiff's declaration alleges in substance that the defendant's agents were negligent in placing or stretching the rope, without warning signs attached thereto, across the passageway at such height as to strike plaintiff's son about the neck or chin, thereby stopping his forward movement and throwing him back onto the concrete pavement with great force; that the defendant was negligent in failing to warn its patrons and more particularly plaintiff's son of the presence of said rope, and that the defendant's agents knew or by the exercise of ordinary care should have known that the placing and maintaining of the rope across the passageway was dangerous and created a dangerous condition.

Upon being ordered to plead its defenses specially, the defendant filed the following special pleas:

'That the swimming pool * * * was constructed and maintained so as to meet and fully comply with the highest standards of safety pertaining to public swimming pools * * *.'

'That at the time * * * that portion of the pool * * * closed to the public had been roped off and signs placed upon the ropes notifying the public that portions had been closed. A rope had been placed across the walkway surrounding the pool near the southwest portion thereof and stretched from the lifeguard stand to the fence enclosing the entire pool. Attached to this rope, which was plainly visible to persons using the pool, was a large metal sign with black painted letters on a white background reading 'This Section of Pool Closed'. That this sign, which was attached to the rope heretofore mentioned, was also plainly visible.'

[40 TENNAPP 134] 'That the closing of portions of public swimming pools to the public by roping off a portion thereof and the placing of signs upon said ropes is a recognized thing the country over and that in so doing this defendant was acting in full compliance with the highest standards of safety pertaining to the operation of public swimming pools.'

The defendant specifically denied that it was under any duty to warn plaintiff's son or 'any other person present of said rope'; denied that he struck the rope about his neck or chin, or that he was thrown with great force onto the concrete, and denied that he died from 'injuries wrongfully inflicted on him by this defendant.'

The defendant also relied upon the decedent's contributory negligence, the contributory negligence of his parents for whose use and benefit the suit was brought, and upon a rule prohibiting patrons from running upon the premises, averring as follows:

'At approximately 5:45 P. M. on the day in question, the boy left his father and traveled in a westwardly direction along and over the apron surrounding the pool. At a point along the way the boy began to run and a lifeguard on duty reached for his whistle to warn the boy not to run. The boy fell. Personnel employed at the pool immediately went to the assistance of the child who was crying and holding his forehead, but who had no discernable marks, bruises, cuts or abrasions about his head, body, or limbs. Thereafter the boy joined his father who for sometime had been standing at a point some 100 feet away from the place where the boy fell.'

[40 TENNAPP 135] At the conclusion of all the evidence a motion made on behalf of the defendant for peremptory instructions was overruled, and the trial resulted in a jury verdict for the plaintiff for $35,000. On the hearing of the defendant's motion for a new trial a remittitur of $15,000 was ordered by the trial judge, which the plaintiff accepted under protest, and the motion was overruled. Thereafter both sides perfected appeals to this Court and errors have been assigned which will hereinafter be considered.

Under assignment 1, the defendant insists that (a) there was no material or competent evidence of negligence to sustain the verdict, (b) there was no material or competent evidence that the child struck the rope, and (c) the parents of the decedent were guilty of contributory negligence as a matter of law, and that the trial court should have sustained its motion for a directed verdict on these grounds. In ascertaining whether there was any material evidence to support the verdict, we are required to take the strongest legitimate view of all of the evidence favorable to plaintiff, disregard all inferences to the contrary, and indulge all reasonable inferences to uphold the verdict. Jarratt v. Clinton, 34 Tenn.App. 670, 241 S.W.2d 941; D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 901.

Only where one conclusion can be reasonably reached from the evidence and inferences is it proper for a trial court to direct a verdict. Coca-Cola Bottling Works v. Selvidge, 4 Tenn.App. 558; Supreme Liberty Life Ins. Co. v. Pemelton, 24 Tenn.App. 576, 148 S.W.2d 1.

With reference to directing a verdict in tort actions, our Supreme Court, in Jackson v. B. Lowenstein & Bros., 175 Tenn. 535, 136 S.W.2d 495, has said:

[40 TENNAPP 136] 'Appellate courts should not lightly assume primary duty of determining liability or non-liability in actions of tort, but should leave such duty with the jury as triers of facts, and if they act arbitrarily courts should then supervise their action.'

With the foregoing rules in mind, we have carefully reviewed the record, and it is our conclusion that the case was properly submitted to the jury.

According to the evidence, the rope described as being small, about the size of a 'window sash cord' or 'lead pencil,' had been exposed to the weather for about 6 weeks, and was 'weather beaten'; that being a neutral color it blended with the color of the fence, the concrete pavement and the post of the life guard tower to which it...