Perkins v. Byrnes, 43646

• Decision Date: 14 June 1954
• Docket Number: No. 2,No. 43646,43646,2
• Citation: 269 S.W.2d 52,364 Mo. 849,48 A.L.R.2d 97
• Parties: , 48 A.L.R.2d 97 PERKINS v. BYRNES et al
• Court: Missouri Supreme Court

Page 52

269 S.W.2d 52

364 Mo. 849, 48 A.L.R.2d 97

PERKINS v. BYRNES et al.

No. 43646.

Supreme Court of Missouri, Division No. 2.

June 14, 1954.

Ennis & Saunders, Festus, Milton R. Fox, William R. Kirby, St. Louis, for appellant.

Thurman, Nixon & Blackwell, Hillsboro, and Dearing & Matthes, Hillsboro, for respondents.

BARRETT, Commissioner.

In this action by Mr. and Mrs. Perkins for the wrongful death of their son Cal the trial court directed a verdict for the defendants at the close of all the evidence. The defendants, Rose and Margaret Byrnes, own and operate a rural resort, a picnic ground and recreation area, on Big River, in Jefferson County, known as Byrnes Mill. In the resort area there is a concession stand, a picnic ground, some cabins built on leased ground, and an old mill dam across Big River. Byrnes Mill had been in operation 'a great number of years off and on' and the resort season was from May 30th to Labor Day. Cal was drowned while swimming in the resort area below the dam in Big River on Labor Day 1950, and it is claimed that his death was caused by the negligence of the defendants in that they permitted swimming on that day although they knew that the river was 'flooded, dangerous and unsafe.' Mr. and Mrs. Perkins also asserted that the defendants were negligent in that, knowing of the unsafe condition of the river and failing to prevent swimming on that day, they failed to warn Cal of the dangerous condition of the river, particularly of hidden undercurrents below the dam, and had taken no precautions whatever for the safety of their patrons, that there were no lifeguards on duty, or rescue appliances, and there were no life lines, life buoys or depth indicators.

Cal was nineteen years of age, five feet nine inches in height, and athletic. He was employed by the Belcher Baths in St. Louis as a physical instructor, 'physical education for business men.' On Labor Day 1950 Cal, four other boys and five girls, went to Byrnes Mill for a holiday outing, a picnic and swimming party. Soon after they arrived Cal, Bryan and Lou Portzell were 'fooling around' with a football while the girls unloaded the food. Once the football rolled over a knoll into the edge of the river and Bryan retrieved it. These three boys changed into swimming trunks and Bryan went in swimming first but came out because the water was too cold. As Bryan came out Cal and Lou went in about ninety feet below the dam. They waded out towards the center of the river and, as they waded could feel the current becoming stronger and when the water was about waist deep, as a defense witness said, they 'pushed off' and immediately a strong undercurrent precipitated them towards the dam. Cal was drowned and Lou was thrown from the path of the undercurrent and rescued.

Upon this appeal by Mr. and Mrs. Perkins it is insisted, under the evidence, that the defendants' negligence and consequent liability for Cal's death should have been submitted to the jury, and, therefore, that the trial court erred in directing a verdict. The defendants, on the other hand, insist that there was no evidence from which negligence on their part could reasonably be found, and, in any event, that Cal attempted to swim in Big River, below the dam, after he had been warned or knew of the swollen, obviously dangerous condition of the river and therefore was guilty of contributory negligence as a matter of law. Upon the trial of the cause the defendants sought to leave the impression that Byrnes Mill was not open for business that day and that Cal and his friends were not invitees upon the defendants' premises, but in their argument here the defendants tacitly admit that they were in fact invitees. Hence there is no dispute between the parties as to the applicable general rules, those governing the relationship between the proprietor of a place of public amusement and his business invitee. Restatement, Torts, Sec. 343. Their reciprocal rights, duties and obligations with respect to both the condition of the premises and the activities carried on there have been set forth repeatedly and it would serve no useful purpose to again state them here. Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 61 A.L.R. 1269; Hudson v. Kansas City Baseball Club, Inc., 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858; Hughes v. St. Louis Natl. League Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989, A.L.R.2d 904; annotation 22 A.L.R. 610. While there are no special rules peculiarly applicable to the particular amusement or activity it must be noted that the fact of whether the patron is a spectator or a participant in the sport is a circumstance to be taken into consideration in determining whether the proprietor has exercised due care for the safety of his patron. The proprietor is not an insurer of his patron's safety, and both the participant and the spectator accept certain hazards or dangers, those that reasonably inhere in the sport so far as they are obvious and usually incident to the game. Hudson v. Kansas City Baseball Club, Inc., 349 Mo., loc. cit. 1223-1225, 164 S.W.2d loc. cit. 322-323; Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 481-483, 166 N.E. 173. However, there is a difference in circumstance in the hazard of a spectator's being struck by a fly ball while watching a baseball game and what a swimmer may reasonably expect and assume from his host and the natural or artificial facilities provided for his active participation in the sport.

The defendants, in contending that they had discharged the full measure of their duty to their patrons and that there was no evidence from which negligence was a fair and reasonable inference, point to the fact that Big River is a public stream and that they could control neither its depth nor its current. It is urged, considering the character of the premises, the nature of the facilities afforded, and the particular circumstances existing on Labor Day 1950, the muddy, flooded river, that the defendants had exercised the required care to maintain their premises in a reasonably safe condition and had fulfilled their obligation to their patrons. On difficulty with the defendants' argument, however, is that the appeal does not present the same problem that would have confronted the court had the trial court submitted the case to the jury and there had been a verdict in the defendants' favor. Walloch v. Heiden, 180 Ark. 844, 22 S.W.2d 1020; Thierry v. Oswell, 212 Ala. 418, 102 So. 903; White v. Rohrer, Mo.Sup., 267 S.W.2d 31. The trial court, by directing a verdict at the close of all the evidence, has declared as a matter of law that there was no evidence upon which a jury should be permitted to exercise its function of reasoning and find that the defendants were negligent, or, that the plaintiffs were entitled to recover.

It is true that Big River is a natural stream, or, as the defendants say, 'a public stream,' and they could not control its depth or current. But the rules prescribing the duty of care and requiring the proprietor of a place of public amusement to make the known dangerous condition safe or to give a warning adequate to enable his patron to avoid the harm applies to 'a natural or artificial condition thereon.' Restatement, Torts, Sec. 343. The proprietor or landowner may enclose his land adjacent to a natural stream, and his is the election to determine whether the public is to be excluded or accorded the status of invitees. 39 Am.Jur., Sec. 2, p. 803; 52 Am.Jur., Secs. 44, 46, 71, pp. 288, 290, 315. Once he has made the election and appropriated a part of a public body of water to the uses of his private venture the general rules have been applied to such divergent bodies of water as Lake Ontario, Great Salt Lake, Lake Washington, Lake Pocotopany in Connecticut, Barren River in Kentucky, St. Joseph's River in Indiana, and even to the tidal waters of an arm of the sea. Dinnihan v. Lake Ontario Beach Imp. Co., 8 App.Div. 509, 40 N.Y.S. 764; Larkin v. Saltair Beach Co., 30 Utah 86, 83 P. 686, 3 L.R.A.,N.S., 982; Grove v. D'Allessandro, 39 Wash.2d 421, 235 P.2d 826; Nordgren v. Strong, 110 Conn. 593, 149 A. 201; Waddel's Adm'r v. Brashear, 257 Ky. 390, 78 S.W.2d 31, 98 A.L.R. 553; Bass v. Reitdorf, 25 Ind.App. 650, 58 N.E. 95; Blanchette v. Union St. Ry. Co., 248 Mass. 407, 143 N.E. 310.

The defendants had operated Byrnes Mill for a number of years and Cal and his friends were invitees upon the premises. And normally, no doubt, most people swam in the water above the dam, but as to the water below the dam, which one of the defendants described as 'always a rapid current,' a defendants' witness said, 'In good weather there would be many people' swimming in that particular area. Unquestionably the river was 'up' or 'swollen,' even 'high.' One of the defendants' witnesses said that it was 'at flood stage' and obviously dangerous. Another said that it was 'very high' and that the effect of the high water running over the dam was that 'It causes an undercurrent there.' Others said that it was 'very treacherous,' or 'high,' by reason of recent rains. One of the defendants, called as a plaintiff's witness, testified that the river was 'high and muddy,' almost level with the dam, but 'It has been higher before.' It is the defendants' position that the river was so obviously muddy and high or 'flooded' that Cal must have seen its condition and known that it was dangerous and not suitable for swimming. It was chilly on Labor Day and Cal and his friends were the only people who attempted to go swimming, and it must have been obvious that the river was up and swollen, but there is no evidence that it was at 'flood tide' in the sense of being out of its banks, inundating land not...