Meridian Amusement Concession Co. v. Roberson

• Decision Date: 29 January 1940
• Docket Number: 33973
• Citation: Meridian Amusement Concession Co. v. Roberson, 188 Miss. 136, 193 So. 335 (Miss. 1940)
• Court: Mississippi Supreme Court
• Parties: MERIDIAN AMUSEMENT CONCESSION CO. v. ROBERSON et al

193 So. 335

188 Miss. 136

MERIDIAN AMUSEMENT CONCESSION CO. v. ROBERSON et al

No. 33973

Supreme Court of Mississippi, Division A

January 29, 1940

Suggestion Of Error Overruled March 25, 1940.

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Action by W. B. Roberson and others against the Meridian Amusement Concession Company for death of a 10 year old child. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

Jacobson & Snow, of Meridian, for appellant.

The facts as developed by the proof are insufficient to establish negligence, and there is no causal connection between any negligence attempted to be proven and the death of deceased.

22 A L. R. 635; Burnside v. Gulf Ref. Co., 148 So. 219 164 Miss. 460; Berryhill v. Nichols, 158 So. 470, 171 Miss. 769; Blass v. Virgin Pine Lbr. Co., 50 F.2d 29; Bartalot v. Kinnare, 72 Ill.App. 52; Brotherton v. Manhattan B. I. Co., 48 Neb. 567, 67 N.W. 479; C. & G. R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Crone v. City of El Cajon, 24 P.2d 848; 45 C. J. 701, 838; Daniels v. Jackson Infirmary, 163 So. 447, 173 Miss. 832; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392; Davis v. Pacific Power Co., 107 Cal. 563, 40 P. 950; Feld v. C. & G. Ry. Co., 121 So. 272, 153 Miss. 601; Flora v. Bimini Water Co., 161 Cal. 495, 119 P. 611; Ga. Cas. Co. v. Cotton Mills Product Co., 132 So. 73, 159 Miss. 396; Hammontree v. Cobb Const. Co., 152 So. 279, 168 Miss. 844; Hinds v. Moore, 87 So. 1, 124 Miss. 500; Hercules Powder Co v. Calcote, 138 So. 583, 161 Miss. 860; I. C. R. R. v. Bloodsworth, 145 So. 333, 166 Miss. 602; Jackson v. State, 159 So. 406, 172 Miss. 145; J. C. Penney Co. v. Scarbrough, 186 So. 316; Kramer Service Co. v. Wilkins, 186 So. 625; Lucas v. Hammond, 116 So. 536, 150 Miss. 369; Larkin v. Saltair Beach Co., 30 Utah 86, 83 P. 686; Lyman v. Hall, 219 N.W. 902; Masonite Corp. v. Hill, 154 So. 295, 170 Miss. 158; M. P. Transport Co. v. Beard, 176 So. 156, 179 Miss. 764; Mut. Ben. H. & Acc. Assn. v. Johnson, 186 So. 297; Maher v. Madison Sq. Garden Corp., 152 N.E. 403, 242 N.Y. 506; N. O. & N. E. R. R. v. Holsomback, 151 So. 720, 168 Miss. 493; Pietri v. L. & N. Ry. Co., 119 So. 164, 152 Miss. 185; Rom v. Huber, 93 N. J. L. 360, 108 A. 361; Shuptrine v. Herron, 180 So. 620, 182 Miss. 315; Salter v. Deweese-Gammill Lbr. Co., 102 So. 268, 137 Miss. 229; Shell Pet. Corp. v. Eagle Lbr. & Sup. Co., 158 So. 331, 171 Miss. 539; Swann v. Riverside Bathing Beach Co., 132 Kan. 31, 294 P. 903; Scott v. City of Long Beach, 292 P. 664; Thompson v. I. C. R. R., 63 So. 185, 105 Miss. 636; Thomasson v. Agnes, 24 Miss. (2 Cushm.) 93; Thompson v. M. C. R. R. Co., 166 So. 353, 175 Miss. 547; Teche Lines v. Bounds, 179 So. 747, 182 Miss. 638; Tawney v. Ry. Co., 84 Kan. 354, 114 P. 223; Vernes v. Roth, 202 Ill.App. 328; Waddle v. Sutherland, 126 So. 201, 156 Miss. 540; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Y. & M. V. Ry. Co. v. Skaggs, 179 So. 241, 181 Miss. 150; Y. & M. V. Ry. Co. v. Green, 147 So. 332, 167 Miss. 137; Y. & M. V. Ry. Co. v. Lamensdorf, 178 So. 80, 180 Miss. 426.

It is the settled law in this jurisdiction that a party cannot be held liable for injury or death of another, or damage to the property of another, unless the party charged has been guilty of negligence and proof is adduced that his negligence was a proximate cause of the injury or damage. This rule was established by the court in its infancy as a court, and has been affirmed and reaffirmed until the present time; the court in many recent decisions having reaffirmed the doctrine in the strongest language.

Thomasson v. Agnes, 24 Miss. (2 Cushm.), 93; Waddle v. Sutherland, 126 So. 201, 156 Miss. 540; Ga. Cas. Co. v. Cotton Mills Products Co., 132 So. 73, 159 Miss. 396; Hammontree v. Cobb Const. Co., 152 So. 279, 168 Miss. 844.

Ordinary care of reasonably prudent person does not demand that person should provide for or anticipate unusual, improbable, or extraordinary occurrence.

Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Jabron v. State, 159 So. 406, 172 Miss. 135; Shuptrine v. Herron, 180 So. 620, 182 Miss. 315; I. C. R. R. v. Bloodsworth, 145 So. 333, 166 Miss. 602; Feld v. C. & G. Ry. Co., 121 So. 272, 153 Miss. 601.

The position of appellees in the case at bar was, and we respectfully submit a careful consideration of the examination and cross-examination of the witnesses will clearly demonstrate, an effort to show that it was possible to have prevented the death of the deceased by appellant doing what was done in a different manner; that is, by paying specific attention to each individual in the pool instead of rendering a general supervision as was done. Appellees' entire effort appears to us to have been to look back over the every act of appellant, or its agents, on the afternoon of this unfortunate happening, and to then point out how the occurrence might have been avoided. It was not shown, and very little effort was made to show, that the acts as performed by appellant and its agents, were, in fact, improper or negligent. Appellees were driven to a violation of the rule hereinabove announced because of the extreme diligence and vigilance of appellant in the operation of its pool. Appellees did not rely on and cannot rely on the doctrine of res ipsa loquitur to establish the case. That doctrine is not applicable to the facts.

Daniels v. Jackson Infirmary, 163 So. 447, 173 Miss. 832; Y. & M. V. R. R. Co. v. Skaggs, 179 So. 274, 181 Miss. 150.

It is not sufficient under the law for a plaintiff to point out some act and show that such act constitutes negligence. The negligence pointed out, if any, must be shown to have caused the injury complained of. There must be causal connection between the act and the resulting injury.

Kramer Service Co. v. Wilkins, 186 So. 625; Pietri v. L. & N. Ry. Co., 119 So. 164, 152 Miss. 185; Thompson v. M. C. R. Co., 166 So. 353, 175 Miss. 547; C. & G. R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; J. C. Penney Co. v. Scarbrough, 186. So. 316.

It is always competent to prove that a child, even of tender years, knew and understood the danger.

Hinds v. Moore, 87 So. 1, 124 Miss. 500; Salter v. Deweese-Gammill Lbr. Co., 102 So. 268, 137 Miss. 229; Lucas v. Hammond, 116 So. 536, 150 Miss. 369.

It was not negligence on the part of appellant to permit deceased to go into the large pool under the facts of the case.

Nor was it negligence not to have a rope strung across pool at or near the water's surface, separating deep water from the shallow water.

All guards employed were senior lifeguards certified as such by the Red Cross. These men had all had training and each had stood the examination before being granted a certificate as a Red Cross lifeguard. They were skilled and proficient in the profession. They were expert swimmers and divers, the best swimmers and divers around the City of Meridian.

No one ever charged that Conrad Brown, the man stationed on the south side of the pool, ever left his post of duty, or that he ever did anything other than watch the surface of the pool and the bathers. He was present and available when it was found deceased's body was on the floor of the pool. Likewise, all of the proof shows Roy Malott was attentive to his duties and there is no intimation that he did anything other than watch the pool. We may observe that he was alert to the situation in that he changed posts with Flats Davis at regular intervals, and both he and Davis were there when the alarm was given. Appellees' attack is centered on Flats Davis, but we humbly submit the testimony shows this young man not only was on the alert, but that he did nothing for which he can justly be censured.

We humbly submit there is no rule so unreasonable as to charge Davis with negligence, if it had been proven he had taken his eyes off the pool for a few moments. Suppose it had been found that Davis required a drink of water. Can it be said that it would have been negligence for him to have walked up to the front of the bath house and obtained a drink of water? We submit that the rule is not so rigorous.

No causal connection has been shown between any act of appellant, or its agents, and the death of the deceased.

It is familiar law that the jury may not decide a case upon conjecture. Our court has so held in numerous recent decisions.

N. O. & N. E. R. R. Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Kramer Service Co. v. Wilkins, 186 So. 625; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236; C. & G. Ry. Co. v. Coleman, 160 So. 277; Berryhill v. Nichols, 158 So. 470, 171 Miss. 769; Masonite Corp. v. Hill, 154 So. 295, 170 Miss. 158; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Shell Petroleum Corp. v. Eagle Lbr. & Supply Co., 158 So. 331, 171 Miss. 539; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Y. & M. V. Co. v. Green, 147 So. 332, 167 Miss. 137; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 860; M. P. Transport Co. v. Beard, 176 So. 156, 179 Miss. 764; Y. & M. V. Ry. Co. v. Lamensdorf, 178 So. 80, 180 Miss. 426; Teche Lines v. Bounds, 179 So. 747, 182 Miss. 638; Mut. Benefit Health & Acc. Assn. v. Johnson, 186 So. 297.

The scintilla rule of evidence is not recognized in Mississippi. The law requires substantial proof, and this is so whether the plaintiff has produced all of the proof he can obtain or not.

Mut. Benefit Health & Acc. Assn. v. Johnson, 186 So. 297; Blass v. Virgin Pine Lbr. Co., 50 F.2d 29.

There are numerous cases from courts outside the State of Mississippi which we consider on all fours with the case at bar.

Crone v. City of El Cajon et al., 24 P.2d 848, 849; Swann v Riverside Bathing Beach Co., 132 Kan. 31, 294 P. 903; Lyman v. Hall, 219 N.W. 902; Mayer v....