Nelson v. Langstrom

• Decision Date: 07 March 1961
• Docket Number: No. 50227,50227
• Citation: 108 N.W.2d 58,252 Iowa 965
• Parties: Rector Carl NELSON, Appellant, v. Gertrude LANGSTROM, Victor Langstrom, and Crystal Pool, Appellees.
• Court: Iowa Supreme Court

Page 58

108 N.W.2d 58

252 Iowa 965

Rector Carl NELSON, Appellant, v. Gertrude LANGSTROM, Victor Langstrom, and Crystal Pool, Appellees.

No. 50227.

Supreme Court of Iowa.

March 7, 1961.

Rehearing Denied May 2, 1961.

Ross, Johnson, Northrop, Stuart & Tinley, Council Bluffs, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

THORNTON, Justice.

Plaintiff brought this action to recover for injuries received in diving in a swimming pool, known by the trade name Crystal Pool, in Council Bluffs, Iowa. The pool and premises are owned by one defendant and operated by the other under the trade name. On the trial the jury returned a verdict for defendants. Plaintiff appeals.

The pool is 180 feet east and west and 75 feet north and south. The west 50 feet is the deep end and is marked off from the shallow end by a rope running across the pool. Attached to the rope are two barrels 25 feet apart and the same distance from the sides of the pool. Signs were painted on the barrels warning that the water is nine feet deep west of the rope. These were the only signs or warnings of the depth of the water displayed at any place on or near the pool. In the east 130 feet of the pool the water varied in depth from 3'6 5/8"' at the east end to 4'11"' at the 130 foot point. In the west 50 feet, important here, there is a 'diving pit' where the water is at least 8'9"' deep. The diving pit is 39 feet north and south, or the crossway of the pool, and 22 feet east and west, and is surrounded by shallow water. From the point where the water on the north is 8'9"' to the north edge of the pool is a distance of 18 feet. In this 18 feet the depth of the water changes from 3'5 1/2"' at the north edge of the pool to 3'11 1/4"' nine feet from the north edge, and changes in depth in the next nine feet from 3'11 1/4"' to 8'9 15/16"'. At the west end of the pool is a diving stand with both a low and high diving board. The stand extends 11 feet into the pool from the west edge and the diving boards extend to the edge of the diving pit. On each side of the west end of the pool there is a lifeguard stand. They are located about halfway between the nine foot rope and the west edge. The lifeguard stand on the north is 21 feet west of the rope.

On August 16, 1958, plaintiff, a man 47 years old and six feet one inch tall, made his first visit to Crystal Pool. He was accompanied by his two daughters, ages six and eight at the time. They entered the premises, plaintiff paid the admission for the three of them, and the girls, already in their swim suits, entered the shallow east end of the pool. Plaintiff changed to his swim suit in the bathhouse on the north side of the pool. He walked from the bathhouse, along the north side of the pool, toward the west end. He testified there were between 50 and 80 people scattered fairly evenly throughout the pool. People were in the west end diving and swimming. He saw the two diving boards at the west end of the pool. People were diving into the pool from the edge of the pool. Plaintiff walked to within six or seven feet east of the lifeguard stand on the north side and dove into the pool. He testifies he hit his head on the bottom in this dive and received the injury for which he seeks recovery. Plaintiff and his girls left the pool within 45 minutes. He was sick to his stomach. He worked for two weeks and then visited the doctor. He was hospitalized. After he was released from the hospital he notified the defendants of his injury. The date of his notifying defendants was September 24, 1958. Further evidence will be set out in discussing the errors assigned.

Plaintiff urges four errors for reversal. Two relate to the admission of evidence, one to the failure to properly instruct, and the last to the failure to submit a pleaded specification of negligence.

I. Plaintiff's first complaint is the hypothetical question asked one of the lifeguards by defendants assumed facts not in evidence. This requires an examination of the evidence of the dive made by plaintiff. The question asked is, in pertinent part, '* * * what would be the effect of a person diving into the water who made a half twist as they dove into the water?' The answer was, '* * * he would more than likely turn and come back toward the direction from which he went into the water.'

Plaintiff testified on direct examination, 'I * * * dove in kind of a side dive. * * *.'

On cross-examination, he said, 'I dove toward the diving board. I was diving at an angle to the pool. * * * I dove with a side twist. * * * I made a regular dive, * * * I came up * * * at about the point where I dove in. I don't remember which way I was turned when I came up. * * * I don't necessarily say that I dove straight down, no, sir, I did go down and out, otherwise I couldn't (get) five or six feet away.

'Q. And you twisted too, didn't you, as you went down? A. Yes sir, I made a half turn. I dove pretty straight. I wasn't making a shallow dive. I was going to swim under water towards the board. I dove down and out. I made a half turn in diving.'

Plaintiff's contention is the hypothetical question referred to a half twist, a dive requiring particular skill and which can not be made from the position of plaintiff's dive. And that even though the words 'twist' and 'turn' are used interchangeably by plaintiff there is no evidence he was making a half twist.

There is no evidence a half twist cannot be made from the position of plaintiff's dive. We do find in Webster's New International Dictionary, 2nd Ed., unabridged, 1961, under the definition of 'twist' as a noun the following:

'12. Fancy Diving. Any front or back dive in which the diver, beginning usually at the highest point of the dive, executes, in corkscrew fashion but without bending the body, a half turn (half twist) or a complete turn (full twist), the turn being accomplished by twisting the shoulders sideways so that the body follows the movement.'

We cannot say the dive as described by plaintiff (his is the only testimony on the question) is outside of the definition. Webster, supra, states 'turn' and 'twist' are synonyms. The witness apparently so used them. It is true his testimony is subject to the interpretation, he dove straight out toward the diving board. But the hypothetical question is proper if the facts assumed are such as the jury would have a right to find the facts to be. In re Estate of Telsrow, 237 Iowa 672, 682, 22 N.W.2d 792, 799; Wigmore's Code of Evidence, rule 100, art. 3, par. (e), § 766; and 32 C.J.S. Evidence § 551, pp. 348, 349. Clearly the jury could find from plaintiff's testimony he twisted or turned his body sideways as he dove.

II. Over objection of plaintiff each defendant was allowed to testify no previous accidents through diving had come to their knowledge during the time of their ownership and operation of the swimming pool. Plaintiff contends where, as here, there is no issue of knowledge of the occupier of premises, evidence of the absence of other accidents is inadmissible. We believe the plaintiff is mistaken when he claims there is no issue of the knowledge of defendants. It is true the defendants were aware of the size and construction of the pool. They knew this from the time it was built in 1931. Also they knew the depth of the pool and the parts of the pool that were safe for diving because of depth. They knew the water along the north side of the west end of the pool was 3'5 1/2"' deep, and the depth increased to only 3' 11 1/4"' in nine feet toward the center of the pool. However, it was their contention that the depth of the pool was visible to anyone and that the water was clear. Plaintiff testified at the place he dove in the water appeared to be deep enough for the dive he made. One defendant, and two lifeguards testifying for defendants, testified the water was clear and a person standing on the north edge of the pool could judge the depth of the water. The clearness of the water and whether or not a patron of the swimming pool in the exercise of reasonable care could determine the depth of the water were important issues in this case.

Defendants owed the duty to exercise reasonable care to have their premises reasonably safe for invitees, if it is not they had the duty to remedy the defect or danger, or to warn the invitee who in the...