Schweitzer v. Gilmore

• Decision Date: 20 January 1958
• Docket Number: Docket 24692.,No. 64,64
• Citation: 251 F.2d 171
• Parties: Theresa E. SCHWEITZER, Administratrix of the Estate of William A. Schweitzer, Jr., Plaintiff-Appellant, v. Hazel M. GILMORE and George M. Gilmore, doing business as Oakwood Camp, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

251 F.2d 171 (1958)

Theresa E. SCHWEITZER, Administratrix of the Estate of William A. Schweitzer, Jr., Plaintiff-Appellant, v. Hazel M. GILMORE and George M. Gilmore, doing business as Oakwood Camp, Defendants-Appellees.

No. 64, Docket 24692.

United States Court of Appeals Second Circuit.

Argued November 19, 1957.

Decided January 20, 1958.

Cole & Cole, Hartford, Conn., Bertrand Quinto, Morton E. Cole, Donald R. Hirsch, Hartford, Conn. (Cyril Cole of counsel on the brief), for plaintiff-appellant.

John E. McNerney and Francis J. Moran, New Haven, Conn., for defendants-appellees.

Before HAND, HINCKS and LUMBARD, Circuit Judges.

LUMBARD, Circuit Judge.

The questions for decision are whether the judge should have charged the jury with respect to res ipsa loquitur and last clear chance in view of the evidence regarding Schweitzer's drowning when he attempted to swim ashore after the defendants' raft drifted from its anchorage. We hold that such instructions were not required and affirm the judgment for the defendants.

Plaintiff brought this suit in the District of Connecticut to recover damages for the wrongful death of her husband, William A. Schweitzer, who drowned while swimming in Lake Pocotopaug, Connecticut on August 11, 1953. A guest at defendants' resort, he had swum out to the raft provided by the defendants for their guests and others. The raft at the time was anchored approximately 100 feet out from the beach; bathers could walk out to within 20 to 35 feet of the raft and then had to swim the rest of the distance.

The defendants' summer resort or camp, which could accommodate up to 60 or 70 guests, was located across the road from the beach. The defendants, with the help of neighbors, set out the raft each spring. The raft, which had been anchored in approximately the same location for fifteen or sixteen years, had broken loose only once before during a severe storm. Although the defendants advertised the bathing facilities in connection with the camp, the raft was freely used by both their guests and others swimming in that part of the lake and no effort was made to supervise the bathing. It was undisputed that the swimming area was without life-saving equipment, floatlines, or lifeguard. The defendants had a number of rowboats for rent, some of which may have been on shore at the time of the accident, but no lifeboat was maintained.

When Schweitzer swam out to the raft, two boys, David Solger and James Dickinson, were already out there, alternately swimming in the vicinity of the raft and sunning themselves. Schweitzer climbed up on the raft and stretched out in the warm August afternoon sun. About 40 to 75 people, mostly children, were on the beach or swimming in the shallow water near shore. Various boats dotted the lake, although only one was near the raft when the drowning occurred.

Sometime after Schweitzer climbed on the raft, David Solger noticed that the raft appeared to be drifting out from shore. After hesitating a few minutes the boys told Schweitzer that the raft was drifting and then started swimming for shore. Schweitzer "looked frightened." The raft by this time was approximately 150 feet or more from shore. When the boys had swum about halfway in, they heard Schweitzer enter the water. Although Schweitzer was known as a good swimmer, he floundered on the surface for a few minutes and, after calling out, went down about 30 feet from the drifting raft.

In the meantime several people on shore had realized Schweitzer's predicament and had attracted the attention of two youths in a rowboat about 125 feet from the place where Schweitzer was struggling in the water. The two youths immediately headed for the drowning man, but in his haste the rower pulled an oar out of the oarlock and the boat pivoted. In two or three minutes they reached the place where Schweitzer had been struggling, but by this time he had disappeared. Attempts to rescue him failed and his body was not recovered until several hours later.

At the trial plaintiff attempted to show negligence by offering evidence of the lack of safety equipment and supervision at the beach and negligence in the construction and mooring of the raft. Testimony by the plaintiff's expert tended to show that the safety facilities were less than those generally prevailing at other resorts and that the mooring was insufficient to hold the raft in place. The charge, recognizing that the Gilmores had a duty of due care toward their business guest, expressly left to the jury whether or not the defendants were negligent in failing to take greater "safety precautions such as lifeguards, lifeboats or life rings * * *" and in failing "to use reasonable care in the manner provided for anchoring the raft, and to make the raft reasonably safe for use by Schweitzer," and whether, if it were found that defendants were negligent, such negligence was the proximate cause of the drowning. The Court further charged that if the jury should find Schweitzer had been negligent, they should find for defendants.

On the facts of this case the judge's charge adequately and correctly stated the questions to be decided by the jury. This was all that the plaintiff could ask and, as the jury answered these questions favorably to the defendants, the judgment for the defendants must be affirmed.

Plaintiff contends that the refusal to charge on res ipsa loquitur doctrine was error. We disagree. Res ipsa loquitur, in Connecticut at least, means nothing more than that the occurrence of an accident in itself is sufficient circumstantial evidence of negligence to permit a jury to find liability without further proof of how the accident occurred. See Ryan v. George L. Lilley Co., 1936, 121 Conn. 26, 183 A. 2. If the court is persuaded that...