Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.
Jack Choisser, City Atty., and William C. Fields, Asst. City Atty., both of Phoenix, for appellant.
V. L. Hash, of Phoenix, for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
Jonnie Fae Anderson, a minor of the age of thirteen years, acting through her father as guardian ad litem, sued the City of Phoenix for $ 5,500 ($ 500 for medical expense and $ 5,000 for lessened earning power and pain and suffering) for injuries that she suffered when, on June 17, 1945, she fell from the high-dive platform at the swimming pool in University Park. The minor will hereafter be referred to as the plaintiff and the City of Phoenix as the defendant or City.
[65 Ariz. 312] The jury awarded the plaintiff a verdict in the sum of $ 500 and judgment was entered thereon. The City moved for a new trial which motion was denied by operation of law as the court failed to rule
upon it within the statutory period. Sec. 21-1308, A.C.A.1939. Although the City's only appeal is from the judgment (as the notice of appeal does not include the denial of its motion for a new trial), plaintiff, and rightly so, does not urge too strongly the rule formerly laid down by this court in Gila Valley Copper Co. v. Gilpin, 14 Ariz. 564, 133 P. 98 and Arizona Eastern R. Co. v. Globe Hdwe. Co., 14 Ariz. 397, 129 P. 1104, that upon an appeal from a judgment only, the Supreme Court cannot look into the evidence. Plaintiff's counsel suggests, and it is the fact, that Sec. 21-1703 enlarges the scope of review by stating in part that: "* * * If a motion for a new trial was denied, the court may, on appeal from the final judgment, review the order denying the motion, though no appeal be taken from the order; on an appeal from a final judgment the Supreme Court shall not, however, consider the sufficiency of the evidence to sustain the verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made." (Emphasis supplied.)
Defendant makes two assignments of error. First, that the City in operating the public parks is performing a governmental function and hence is immune from tort liability arising therefrom. In view of the disposition that must be made of this case upon other grounds, it becomes unnecessary and would, in fact, be obiter dicta to here decide whether park operation is a governmental or proprietary function of the City. Second, defendant claims that the court erred in denying the City's motion for a directed verdict (made at the close of plaintiff's case and again at the close of all the evidence) for the reason that there was insufficient evidence to support the allegations of plaintiff as to the negligence of the City.
Specifically plaintiff's complaint charged that: (1) The City unskillfully and unsafely constructed the high diving platform in that there was provided no intervening network between the bannister or guard rail and the platform itself to protect persons who might be thrown against this rail from falling through it which caused the diving platform to be unsafe and unfit for use. (2) The City negligently failed to have guards, though admittedly present, sufficiently regulate the conduct of the children upon the diving platform.
The crucial question then becomes whether under any theory advanced by plaintiff and supported in law, the City was remiss in its duty to provide a proper highdive platform and to regulate the use thereof for the safety of its patrons.
Even if the maintenance of the pool in question be a proprietary function of the City as the plaintiff contends, and [65 Ariz. 313] which we cannot here decide, the City would be bound to exercise only a reasonable standard of care in its operation. Dillow v. City of Yuma,55 Ariz. 6, 97 P.2d 535; Rush v. City of Globe,56 Ariz. 530, 109 P.2d 841, 38 Am.Jur. 263, 303, 43 C.J. 921 and ff.; Ramirez v. City of Cheyenne,34 Wyo. 67, 241 P. 710, ...