HUGH COLLINS, Personal Representative of the Estate of HUGH COLLINS, JR., Deceased, Appellant,
RIVERSIDE AMUSEMENT PARK COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded.
Mr. V. L. Hash and Mr. L. V. Rhue, for Appellant.
Messrs. Sloan, Scott & Green, for Appellee.
Hugh Collins, the appellant herein, in his capacity as personal representative of the estate of Hugh Collins, Jr., deceased, brought this action for damages against the appellee for the death [61 Ariz. 136] of Hugh Collins, Jr., his son, on July 10, 1940, at a swimming pool operated by appellee south of the City of Phoenix.
The complaint alleged that the son was of the age of fourteen years, and was drowned through the negligence of appellee; admission was paid for by deceased for entering the park where the swimming pool was located; that because of the great depth of the water in said pool in one end of same, and because of the devices for diving and swimming operated in connection with the pool, and because of the rings suspended from a cable over and above the deep water, the pool was then and there a dangerous place for said boy; that the defendant carelessly and negligently failed to provide lifebuoys and water poles in said pool, or a lifeguard to be in constant attendance upon the said swimming pool to reasonably protect the patrons; that the appellee failed to have and maintain at such swimming pool any means of rescuing plaintiff's son at the time he fell into the deep water; and that while he attempted to
swing from the aforesaid rings upon the said cable over the deep portion of said pool, which was approximately nine feet in depth, the said son did fall into the deep water and was drowned as a result of the carelessness and negligence of the appellee herein.
The appellee, in answering, denied that at said times it had constructed cables extending over the deepest part of said swimming pool to which were attached a large number of rings and in that regard alleged that at said time there was one cable stretched from the north to the south bank of said pool, approximately fifty feet from the east end of said pool, to which said cable was attached approximately five rings whereby patrons of said pool could swing from one ring to another across the water in said pool. Alleged that deceased entered the said [61 Ariz. 137] pool at about 9:00 A.M., on the 10th day of July, 1940, and deceased, together with his companion, continuously thereafter swam and played in and about said pool until his death at about the hour of 1:45 P.M.; that said Hugh Collins Jr., was an experienced swimmer; had previously used the pool on numerous occasions and was familiar with said pool; that the depth of the water was painted in large conspicuous letters or numerals at various intervals on the banks of the pool; that at all times when said pool was open to the public, it kept and maintained at or in the immediate vicinity of said pool one or more employees or attendants trained and skilled in rescue work, including artificial respiration, and that such an attendant or attendants was on duty at said pool throughout the day of July 10, 1940.
The appellee further pleads that at the time stated the said Hugh Collins, Jr., swung out on rings in said swimming pool and dropped feet first therefrom into the water and swam to the north bank, and there became affected with an attack or seizure in the body, the exact nature being unknown to appellee, and the said Hugh Collins, Jr., was immediately removed from said pool. The lifeguards commenced artificial respiration and revived him to some extent, and then he lapsed into unconsciousness; that when Collins was taken from the pool, appellee immediately called for a physician, together with the pulmotor rescue squad maintained by the City of Phoenix, both of which worked upon said boy for a period of several hours, but were unable to restore him to life. It is further claimed that the death was due solely and proximately to natural causes within the body of said Hugh Collins, Jr., deceased, and not to any act or omission of appellee.
In this case the trial court directed the jury to render its verdict in favor of the appellee herein.
[61 Ariz. 138] Appellant submits but one assignment of error, which is as follows:
"That the court erred in directing a verdict for the defendant on the ground that plaintiff had not made proof of actionable negligence against the defendant."
The appellant contends that the court should not have taken the case from the jury unless as a matter of law recovery cannot be had upon any view which can properly be taken of the evidence, and, also, where the evidence is such that reasonably minded men differ as to the inferences to be drawn from the facts a jury question is presented.
The question, therefore, for us to determine is whether or not appellant made proof of actionable negligence in the submission of his case; the principal negligence relied on was the failure to have a lifeguard present in actual attendance with the necessary appliances to rescue persons who might submerge in the pool and be unable to extricate themselves therefrom.
Vernon Smith, who was called as a witness by appellant in the trial case, testified that he did not know the deceased, and further testified as follows:
"Q. That occurred at the Riverside Swimming Pool. And when did you first notice him there that day? A. I seen him in the water once before.
"Q. Saw him in the water once before. Now, then, did you see him at the time that he was in distress before he got out on the bank? A. No, he was right at the edge when I seen him first.
"Q. At the time you saw him he was right at the edge. Now, how did he get out of the pool? A. Well, two other boys and I grabbed him, pulled him out.
"Q. Two other boys and you grabbed him and pulled him out. Now, were those other boys Charles Robeda and Leonard Warmington? A. Yes, I believe those were the ones.
[61 Ariz. 139] "Q. All right. Now, what did you do and what did they do when you got him out of the pool? A. Well, I sent them
after the lifeguard when we pulled him out of the pool.
"Q. I see. Then what did you do? A. I started to try to perform artificial respiration on him.
"Q. I see. Now, will you tell the jury, so they will understand, just what you actually did, how you did it? A. Well, artificial respiration is, you lay them prone on their stomach and place their head and their hands so that their mouth is free and open, so that the water can come out, and press on the small of their back and contract and expand the lungs, which forces the water out of them.
"Q. I see. Well, now, Vernon, how did you happen to be at the pool that day? A. Well, I swam there quite often.
"Q. You had paid admission that day to go into the pool? A. Yes, sir.
"Q. Well, you say you sent the two boys, Warmington and Robeda, after the lifeguard? A. That is right.
"Q. Did they find him? A. No, they didn't find him.
"Q. Well, who did find him? A. I went and got him myself.
"Q. You quit giving him resuscitation and went to look for the lifeguard? A. That is right.
"Q. Did you find the lifeguard? A. Yes, sir.
"Q. Now, where did you find him? A. At the west end of the pool, by the small pool.
"Q. Was he in that small pool? A. Well, I am not sure, but I think he was in it.
"Q. I see. Then did you bring the lifeguard back with you? A. Yes, sir.
"Q. And what did the lifeguard do? A. He immediately began performing artificial respiration."
The other two persons referred to by said Smith, as the evidence shows, were Charles Robeda and Leonard Warmington, friends of deceased and who went there for swimming purposes also, and at the [61 Ariz. 140] time of this accident each of those two testified that they were on the north bank and pulled Hugh Collins, Jr., out of the pool.
Leonard Warmington, witness for the appellant, testified as follows:
"Q. He (meaning Robeda) had him by the left. All right. Now, tell the jury whether or not you got him out. A. Yes, we pulled him out.
"Q. All right. Then what was done after you got him out? What was the next thing that happened? A. Well, somebody came around and they told us to go for the lifeguard.
"Q. Well, do you know Vernon Smith? A. Yes.
"Q. Was he -- tell the jury whether or not he was the man that came up. A. ...