Waddel's Adm'r v. Brashear

• Decision Date: 09 November 1934
• Parties: WADDEL'S ADM'R v. BRASHEAR et al.
• Court: Kentucky Court of Appeals

78 S.W.2d 31

257 Ky. 390

WADDEL'S ADM'R v. BRASHEAR et al.

Court of Appeals of Kentucky

November 9, 1934

Rehearing Denied Feb. 19, 1935.

Appeal from Circuit Court, Warren County.

Action by Fonis Waddel's administrator against W. H. Brashear and others. From a judgment for defendants upon a peremptory instruction, plaintiff appeals.

Reversed.

Maurice D. Burton, of Bowling Green, for appellant.

Charles R. Bell, George W. Meuth, and R. C. P. Thomas, all of Bowling Green, for appellees.

STANLEY Commissioner.

On July 19, 1932, Fonis Waddel was one of 200 students of the Bowling Green Business University to go on an afternoon's outing to the amusement park and bathing beach operated on Barren river by the appellees, W. H. Brashear and others. Admission fees were paid for the party by the college. In diving from a swing over the water, Waddel's head struck the bottom of the river with such force that a vertebra of his neck was dislocated or fractured. This caused his death two days later. At the conclusion of the evidence introduced by his administrator in a suit for damages against the owners of the park, the court gave a peremptory instruction for the defendants. The appeal is from the judgment entered thereon.

The facilities of the beach consisted in part of springboards, an elevated platform on the bank, and a rope about ten feet long suspended from an overhanging branch of a tree. It was the practice of those enjoying the beach to climb upon the platform, seize the ring at the end of the rope and swinging out over the water to dive or drop from it. When the swing reached the end of the arc it was from twenty to twenty-five feet above the water and near the center of the river. At that point the water was only four to five feet deep. The other places in the swimming hole were more shallow. Nowhere was the water over Waddel's head. The bottom was gravel and an experienced swimmer and diver testified that there was not enough water for diving at the place. There was no sign or warning of any kind as to the conditions, nor were there any life guards or other protective measures being taken. The petition charged that the death of young Waddel was due to the gross negligence of the defendants in maintaining and operating the park and holding it out to the public as safe and suitable for swimming and diving. It particularly charged that the swing and the shallow water constituted a dangerous instrumentality. The defense was a traverse and a plea of contributory negligence.

It is the duty of one conducting an amusement park for profit to be reasonably sure that he is not inviting patrons into danger and to exercise ordinary care for their safety. While the standard of care remains the same, what constitutes its exercise necessarily varies with the situation and circumstances of each particular case. Regard must be had for the fair adaptability of the contrivances and facilities for their customary or reasonably anticipated use. This involves the duty of being diligent to see that water in a diving pool is of sufficient depth to make it reasonably safe for the purpose; or, if it be not safe for that sport with the use of the facilities furnished, there arises the duty to warn or caution patrons by signs or otherwise of the hazard particularly of any latent or hidden condition of danger. Injuries sustained in consequence of a failure to perform this duty are compensable. Majestic Theater Co. v Lutz, 210 Ky. 92, 275 S.W. 17; Park Circuit & Realty Company v. Coulter, 233 Ky. 1, 24 S.W.2d 942; Park Circuit & Realty Company v. Ringo's Guardian, 242 Ky. 255, 46 S.W.2d 106; Louisville Water Company v. Bowers, 251 Ky. 71, 64 S.W.2d 444; Notes, 22 A. L. R. 635, 38 A. L. R. 359, 61 A. L. R. 1295; 26 R. C. L. 714, 721; 62 C.J. 863, 868; Blanchette v. Union St. R. Co., 248 Mass. 407, 143 N.E. 310. The want of knowledge of an unsafe condition which by ordinary care might have been discovered will not excuse liability. 62 C.J. 865; Adams v. Schneider, 71 Ind.App. 249, 124 N.E. 718.

In Johnson v. Hot Springs Land & Improvement Company, 76 Or. 333, 148 P. 1137, 1139, L. R. A. 1915F, 689, a young man received fatal injuries when he dived from a springboard into shallow water of a public natatorium. We may well adopt this excellent statement of the law: "Where a person however, provides accommodations of a public nature, that person is required to use reasonable care and diligence in furnishing and maintaining such accommodations in a reasonably safe condition for the purpose for which they are apparently designed and to which they are adapted. If for any reason the accommodations are not reasonably safe and suitable for the purposes for which they are ordinarily used in a customary way, then the public should be excluded entirely, or appropriate notice of the unsafe and unsuitable condition should be given, and persons warned of the dangers in using them. The springboard and the water beneath it constituted the accommodations which the defendant furnished to the deceased, who was a patron for hire, and, as such, was using them for diving purposes, to which they were adapted, and in the way in which they were customarily used. Persons patronizing the natatorium have a right to assume that the defendant has performed its...