Mullen v. Russworm
| Decision Date | 15 February 1936 |
| Citation | 90 S.W.2d 530 |
| Parties | MULLEN v. RUSSWORM et al. |
| Court | Tennessee Supreme Court |
Walker & Hooker, of Nashville, for plaintiff in error.
Trabue, Hume & Armistead, J. G. Stephenson and Maddin & Maddin, all of Nashville, for defendants in error.
This damage suit was brought against the owners of a swimming pool by the father and administrator of a young boy who was drowned there. The circuit judge directed a verdict for the defendants. The Court of Appeals reversed the judgment below, holding that the case should have been submitted to the jury. This court granted defendants' petition for certiorari.
The swimming pool was located in Cumberland Park on the outskirts of Nashville. An admission fee was charged and bathing suits were rented. The pool was 200 feet long and 80 feet wide. At its western end the water was about 2 feet deep, and the bottom of the pool sloped down so as to make the depth of the water about 15 feet at the eastern end. The basin was constructed of concrete, and there were walks around the sides. There was a raft or float about 20 feet square secured by ropes in the middle of the pool. There were conspicuous figures on the side walls showing each additional foot of the water's depth throughout the length of the pool.
The deceased was a boy 12 years of age. He went out to the pool on the afternoon he was drowned between 2 o'clock and 3 o'clock. He was accompanied by his brother, 15 years of age, and two other boys between 12 and 15 years of age. The boys paid the admission fee and were each given a locker. The dead boy, Charles Mullen, also rented a bathing suit. The party went into the pool shortly after they arrived.
Charles Mullen could not swim. He was just learning to swim, and could keep afloat a short while, paddling or "swimming dog fashion," as the witnesses say. Charles entered the pool at the shallow part, and was seen playing around that portion of the basin. His older brother, who could swim, and the other boys paid Charles no particular attention, being intent on their own pleasure. One witness saw Charles Mullen, some time after he entered the pool, in water about up to his armpit. The water on the west side of the float or raft above mentioned seems not to have been over the head of the dead boy. On the east side of the float the water was over his head. One of plaintiff's witnesses saw Charles Mullen on the east side of the float paddling around in water beyond the boy's depth and pulled him up on the raft. The testimony of this witness does not indicate that Charles was in particular difficulty just at this time, but the witness thought the young boy was likely to get into difficulty. After this, Charles was seen on the side or bank of the pool in conversation with some other boys, and this was the last time he was seen alive.
When the older brother and the other boys in the party got ready to go home, they looked for Charles but could not find him. Another one of the Mullen boys, about 18 years of age, had been at the pool that afternoon, and Charles' companions thought he had gone home with his oldest brother or had gone home by himself.
Not coming home for supper, Charles' mother grew alarmed about him, made inquiries for him in the neighborhood, and from the police. Later in the night she learned from the brother who had accompanied Charles to the pool where the boys had spent the afternoon. She thought they had gone to a ball game, and the boy that went to the pool with Charles did not at first tell his mother where they had gone. Contact with the managers of the pool was made during the night, the locker rented by Charles was opened and his street clothes found therein. The pool was then drained, and the body of the boy was found toward the eastern end of the pool where the depth of the water was greatest.
No inquiry was made of Charles or of his companions as to whether any of them could swim when they bought admission to the pool. The dead boy was described as a smart boy, able to read and write, and in the sixth or seventh grade at school. The proof indicates that he was rather undersized.
The boy was drowned on the 4th of July. There was a large crowd present at this bathing pool during the afternoon, between 150 and 200 persons. The owners of the bathing pool employed two life guards. One was stationed on either side of the pool during this afternoon in a position to watch the bathers. Charles Mullen was not seen by any witness in the record after he was seen talking to the other boys on the bank of the pool as heretofore stated. An examination of his body when recovered showed that the boy was drowned. There is no proof whatever as to the circumstances attendant upon his death; nothing to indicate when he was drowned. No one saw him in any trouble at any time, except the young man who testified that he pulled the boy out of deep water up on the raft. There is nothing to indicate in what portion of the pool the little fellow was drowned. His body was found in the east end of the pool, but this was after the pool was drained, and the pool was of course drained from the east or deep end. The current occasioned by draining the pool would naturally have drawn the body to the eastern end wherever it might have been located before.
The negligence alleged on the part of defendants is (1) that the life guards were careless and inattentive to the bathers; (2) that an insufficient number of life guards were employed about the place; and (3) that defendants were negligent in failing to learn whether the boy could swim before admitting him to the pool and permitting him to go into deep water in the pool.
There is no definite proof in the record that the life guards were inattentive or negligent in keeping watch over the bathers. It is only suggested that these life guards were young men and that there were numbers of attractive young women present who might have diverted their attention. This charge of the declaration, therefore, does not require further consideration.
We understand the Court of Appeals to have expressed the opinion that the trial judge should have left it to...
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Hale v. Ostrow, No. W2003-01256-COA-R3-CV (TN 7/13/2004), W2003-01256-COA-R3-CV.
...and] 3. an injury to the plaintiff resulting proximately from the defendant's breach of that duty of care." Id. (citing Mullen v. Russworm, 90 S.W.2d 530 (Tenn. 1935); De Glopper v. Nashville Ry. & Light Co., 134 S.W. 609 (Tenn. 1910); Nichols v. Smith, 111 S.W.2d 911 (Tenn. Ct. App. 1937))......
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Ruth v. Ruth
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McFarland v. Grau
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