Thayer v. City of St. Joseph
| Decision Date | 21 November 1932 |
| Docket Number | No. 17603.,17603. |
| Citation | 54 S.W.2d 442 |
| Court | Kansas Court of Appeals |
| Parties | FRANK THAYER ET AL., DEFENDANTS IN ERROR, v. CITY OF ST. JOSEPH, PLAINTIFF IN ERROR. |
Pross T. Cross, Gerald Cross and Maurice P. Murphy for defendant in error.
Morte H. Craig and John W. Mitchell for plaintiff in error.
This is an action in damages. There was a verdict and judgment for plaintiffs and against defendant, City of St. Joseph, in the sum of $3,500. Defendant appealed. The appeal was dismissed and the cause is before us for review on a writ of error.
The record discloses that on August 30, 1924, Kenneth Thayer, a boy ten years of age, came to his death in a municipal swimming pool in the City of St. Joseph, Missouri. Plaintiffs, father and mother of decedent, brought this action in damages for his death. The suit was instituted in the Circuit Court of Buchanan County and by change of venue tried in Andrew County before a jury, resulting in a verdict and judgment, on February 14, 1930, as above indicated.
The amended petition alleges the relationship of decedent and plaintiffs, the ownership and operation of the swimming pool where the drowning occurred; that the pool was operated by defendant "for public use and benefit" and, further, that it was operated for hire and profit. It was further charged that defendant, through its agents, extended an invitation to the public generally to attend said swimming pool, upon payment of an admission fee, and gave assurances to the public generally that lifeguards in sufficient numbers and of proper proficiency would be in attendance to safeguard and protect children while indulging in sports and amusements offered by the pool.
It is alleged plaintiffs' said infant son was taken to the pool, in the custody of another; that upon arrival there, the said infant son was required by one of the servants of defendant, to leave the custody of his said chaperon and go unattended to the men's dressing room, for the purpose of preparing himself to enter the waters of the pool; that said servant and agent of defendant promised and assured said chaperon that he would watch out for and look after the safety of said child and see that the child did not go near the water of the pool, and would have him at a point where said chaperon could again take him into her custody.
The negligence charged is that said servant and agent of defendant negligently failed to look after and look out for the safety of said child, and negligently failed to return him to a place of safety where said chaperon could take him in charge; and that said agent and other agents of defendant negligently and carelessly suffered said child to emerge from said dressing room and to wander and find his way to the water of said pool, and that, as a result thereof, the child came to his death by drowning.
An answer filed by defendant later was withdrawn and a demurrer was filed alleging the petition failed to state a cause of action. This demurrer was overruled and defendant, by leave of court, filed answer admitting its corporate status as a municipal corporation (as alleged in the petition) and that it constructed, owned and operated the swimming pool mentioned in the petition, and denying all other allegations therein. As affirmative defense the answer avers that the acts of the city in appropriating the money, the construction, maintenance and operation of the said swimming pool, were performed by the defendant city, without any legal right or authority conferred upon it by the charter applicable to cities of the first class, and the charter under which defendant city operates; and that because of the lack of legal authority conferred upon it to appropriate the money to construct, to maintain or to operate said swimming pool, no liability of any kind or character accrued to any person against the defendant city on account of the construction, maintenance, or operation of said swimming pool; that if defendant did have the right to appropriate the money for, to construct, to maintain, or to operate said swimming pool under the provisions of its charter, which right is denied, the construction, maintenance and operation of the same were done and performed in defendant's governmental capacity, for the general welfare of the community at large, and by reason thereof, no liability existed against defendant on account of the construction, maintenance or operation of the same by defendant. No reply was filed by plaintiffs but the parties tried the case as if one had been filed.
Motions for a new trial and in arrest were overruled.
The evidence shows plaintiffs were the parents of decedent, and that the swimming pool in question was operated by the board of park commissioners of the defendant city, and that a fee was charged for admission. The evidence further shows that on the occasion in question, decedent entered the premises of the swimming pool in company with four young ladies, or girls, all older than he, namely, Gail Thayer, his sister, Hazel Thayer and Ruth Thayer, his cousins, and a Miss Glasscock who was Mrs. Hopkins at the time of the trial. After the young people had paid the entrance fee and entered the premises, and when they had reached the point where the men and women separated to go to the respective dressing rooms, the entire party, including decedent, started into the ladies' dressing room, which consisted of a large tent. The boy was held by the hand of his sister, Gail Thayer, when an attendant remarked "Ladies to the right and boys (or men) to the left," and when the sister indicated she was going to take the boy with her into the ladies' dressing room, the attendant said the boy would "have to go to the men's dressing room and not to the ladies." The testimony of decedent's sister, Gail, is to the effect she remarked to the attendant that the child must not go into the water alone, as he could not swim, or "don't let him go into the water;" and that the attendant, either by words or action, indicated he would watch the child, and said "he will be all right." That she then stated to the attendant, "he can't swim, can't we take him with us?" It was then the attendant said "he will be all right," and she said "See that he is out here, don't let him go into the water." To this request, the attendant nodded his head in acquiescence. In another place, the sister testified: "Yes, and I asked the attendant to be sure he didn't go into the water," and the attendant said "He will be all right." Decedent then disappeared into the men's dressing room and the sister into the ladies' dressing room; when she came out, she went to the place at the exit from the men's dressing room, where the attendant had promised to have the boy waiting for her. He was not there. She waited for him for sometime, expecting him to emerge from the men's dressing room at any moment; while she was waiting, she heard some people talking about a little boy lying at the bottom of the pool. She became frightened and rushed to a place on the edge of the pool where a number of people had gathered, forced her way into the crowd and saw decedent lying on the pavement in an unconscious condition, with two men working over him, attempting resuscitation, but their efforts were unavailing.
Miss Glasscock (Mrs. Hopkins) testified: Further she testified Gail then sent a little boy to see if Kenneth was in the men's dressing room and he came out and said no one was in there; that they were then attracted to the crowd running to the left of the pool and discovered the boy had been drowned."
Hazel Thayer, one of the cousins, testified in effect, they did not see the boy from the time he went into the men's dressing room until after he was drowned. The other cousin, Ruth, did not testify.
So far as the record shows, no one saw decedent emerge from the men's dressing room, nor enter the water. The first that was known of his drowning was when the body was discovered by a boy named Robert Woods, who testified for plaintiffs, to the effect that he was walking through the swimming pool and felt something touch his leg; that he "thought it was probably some little boy playing," but discovered it was the body of decedent; that a lifeguard came over shortly — "just a matter of seconds," and removed the body from the water. The water where the body was found was four to four and one-half feet deep. The testimony shows that lifeguards, some eight in number, were employed at the pool, having obtained their employment through a competitive examination known as the "Red Cross senior life-saving examination." They were stationed at various points of vantage about the pool and it was their duty to look out for persons in the pool. The testimony on behalf of defendant was to the effect that it was impossible for the lifeguards to keep an eye on everybody in the pool and on everyone who goes under the water and where each one comes up; that it was impossible to give particular attention to every individual in the pool; that there was no way for the lifeguards to know who could swim and who could not; that the attention of none of the guards was attracted to decedent in any way until the witness Woods discovered the body at the bottom of the pool and called the guards.
As shown by the evidence, the pool was irregular in shape, about 361 feet long and 191 feet in width, at the widest place. There were markings on the sides of the cement wall showing the various depths of the...
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