Walloch v. Heiden

• Decision Date: 13 January 1930
• Docket Number: 86
• Parties: WALLOCH v. HEIDEN
• Court: Arkansas Supreme Court

22 S.W.2d 1020

180 Ark. 844

WALLOCH v. HEIDEN

No. 86

Supreme Court of Arkansas

January 13, 1930

Appeal from Pulaski Circuit Court, Second Division, Richard M. Mann Judge; affirmed.

STATEMENT BY THE COURT.

The defendant, Herman Heiden, is the owner and proprietor of the Millwood Amusement Park located on the Hot Springs Pike about six miles west of the city limits of the city of Little Rock. During the summer of 1928, defendant was conducting this park as a place of amusement for hire. Among other things, provided for the amusement of his patrons, was a swimming and bathing pool constructed of concrete, bottom and walls, running north and south 200 feet, and east and west 75 feet. In the northwest corner by partition wall, was provided a pool used exclusively in connection with a toboggan slide. The water in the toboggan pool had no communication with the water in the big swimming pool, so that one could be emptied or refilled without disturbing the other. The toboggan pool was about 115 feet long by 18 feet wide, leaving the big swimming pool in the shape of an L, the foot of which extended west, south of the toboggan pool. The depth of the water in the big pool, when in proper service, varies from 18 inches at the extreme north end, to ten feet at the extreme south end. There is a gradual incline in the bottom of the pool southward, until the water reaches a depth of five feet or more, then a sudden drop of five feet furnishes the ten-foot depth of the pool at the south end. The depth of the water at the different parts of the pool is plainly marked on the walls in large black figures, so that a person using the pool became familiar with the depths of the water at the different parts of the pool. This big swimming and bathing pool was provided with spring boards for diving, and with rings on overhead cables for hand-walking across the pool.

On the evening of the first day of August, 1928, appellant, Wesley Walloch, a boy about seventeen years of age, together with a young companion of about the same age, Leonard Richardson drove out to the park with a Mr. Wilder and children, for the purpose of enjoying the sports provided there. They arrived there about 7:15 and went directly to the toboggan slide, and hired a car apiece, for an hour's use on said slide. This was now about 7:45 P. M. The water in the toboggan pool was of the usual depth. They amused themselves on these cars sliding down the elevated runway into the toboggan pool, until the expiration of their hour's hire. The two boys then went to the main swimming pool. This pool had previously been emptied for the purpose of cleaning the bottom, and was being refilled. When the boys reached the main pool, it lacked about 18 inches or two feet of its proper and customary depth. After arriving at the pool, Wesley and his companion walked out upon a spring board where the water, at its depth when the pool was properly filled, was about five feet. Leonard preceded Wesley on the board and sprang from it catching some rings fastened to a cable stretched across the pool, from which he dropped into the pool. Wesley immediately left the board, either by springing or falling in some way into the pool, and striking the bottom received the injury which is the basis of this suit. Just what were the conditions of the pool, with respect to the quantity of water in it, at the time of the injury, the quantity and sufficiency of the lights, and the attendant circumstances are in dispute. The testimony on these questions, in so far as relevant to the issues, will be stated and discussed in the opinion.

On the trial of this case there was a verdict for the defendant. There was a motion for a new trial, which was overruled, and this appeal is brought, and reversal of the judgment asked because of four alleged errors, the first three errors being for the giving of instructions to the jury over the objection of the plaintiff, and the fourth, for the admission of improper testimony.

Judgment affirmed.

Frank B. Pittard and Jacoway, Miles, Donham & Fulk, for appellee.

Floyd L. Brown and T. N. Robertson, for appellant.

BUTLER J. HUMPHREYS, MEHAFFY and KIRBY, JJ., dissenting.

OPINION

BUTLER, J., (after stating the facts).

The appellant complains, first, of the giving of instruction No. 4, as follows: "The court instructs the jury that if you find from the evidence that neither the plaintiff nor defendant was guilty of negligence, as defined in other instructions, but that the injury was the result of accident, then your verdict will be for the defendant."

Appellant contends that this instruction presented a question not within the issues raised by the pleadings, and that there was no evidence upon which the instruction might be based, and that it was therefore abstract, and tended to confuse the minds of the jury, and to divert their minds from the proper consideration of the real issue. The testimony on the part of appellee tended to establish the fact that the swimming pool had been maintained for about two months only before the injury to Wesley Walloch, and within that time he had visited the pool and gone swimming four or five times; that he was an expert swimmer and diver, and was acquainted with the particular part of the pool at which he was later injured, which was brilliantly lighted, and that on the evening in question he had dived several times, at or near the place of the injury. This testimony was given by James Fisher and others, Fisher stating, in answer to question, that he had seen Wesley dive off the landing where he was hurt the night of the injury, but did not see him dive at the time the injury occurred. There was also testimony tending to show that at the time of, and immediately before, the injury, the pool was being refilled, but that a considerable part of the bottom of the pool at the shallower end had not yet been covered by water, which was entering the pool from a nearby reservoir and making a loud roaring noise; that, after leaving the smaller pool containing the toboggan slides and entering the larger pool, Wesley disported himself for a time with some young girls, and at that time there were more than a hundred people in the pool, diving into the deeper water and swimming and wading around near where the injury occurred. There was also testimony to the effect that Wesley Walloch, before then, and on that evening, had dived in that part of the pool where the water was normally ten feet deep; that afterward he proposed doing some stunts for the instruction and entertainment of the girls, and was warned by his companion, Leonard, that he should not do so, because the water was too shallow.

Miss Helen Mack testified that she and a young lady companion, on the evening in question, were at the pool engaged in diving into the deep water, and, while so engaged, Wesley Walloch came to where they were, and began to make fun of the way in which they were diving, and proceeded to demonstrate how to dive and swim. After this, while witness was still in the deep water, she saw Wesley go out upon the board from which he dived, receiving his injury. Witness described his actions at the time he was in the act of leaving the board for the plunge into the water, stating that, "he put his hands upon his hips as though he was going to dive and it looked like he thought better of it--looked like it was between jumping and diving--looked to me like he jumped off and fell off." In answer to a question as to whether or not he had his hands on his hips, witness answered, "It looked like he was posing." And she was caused to notice by his looking and winking at her. On cross-examination witness stated in answer to question as to whether or not she had seen Wesley on the board, and as to her statement that he dived or fell off, that, "It looked like he didn't know what to do; he changed his mind--didn't know whether to dive or jump. It looked like he did both."

The testimony of this witness was introduced without objection, and at the conclusion of the testimony the court gave, on its own motion, instructions Nos. 1 and 2, as follows:

"1. You are instructed in this case that it was the duty of the defendant, operating a swimming pool and equipment for hire to exercise ordinary care to maintain the same in a reasonably safe condition for the uses and purposes to which it was to be put. If you find from the testimony in this case that the defendant negligently failed to maintain the pool in its depth of water, so as to be reasonably safe for the users of the equipment and pool by reason thereof, plaintiff, while in the exercise of ordinary care for his own safety, was injured, your verdict will be for the plaintiff."

"2. If you find in this case that the equipment as used on this pool, together with the depth of the pool at the time the plaintiff was injured, was dangerous because of the depth of the water, then it...