Paul M. Roca, of Phoenix, for appellant.
Snell & Wilmer, of Phoenix, for appellees.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concurring.
De Concini, Justice.
[71 Ariz. 401] Appellant Charles I. Thornburg, whom we shall hereinafter designate as plaintiff, filed his suit against defendants claiming damages on account of the alleged negligence of the defendants resulting in the death of his minor son, Charles W. Thornburg. After a jury trial, the lower court directed a verdict in favor of the defendant Louis Elgas and the jury returned a verdict in favor of the corporate defendant, Tempe Chamber of Commerce, which is hereinafter designated as defendant. Plaintiff's motion for a new trial having been denied, plaintiff appeals to this court from the judgment entered on the verdicts.
The evidence showed that Charles W. Thornburg, son of the plaintiff, hereinafter referred to as Thornburg, was at the Tempe Beach swimming pool on April 24, 1945. He was friendly with Charles Smith, the pool's lifeguard, and together with two girls they planned a double date that evening after the pool closed.
It was standard practice in April, 1945, to close the pool every evening at 7:00 p. m. and on the days when the pool was to be drained and refilled, to drain the water therefrom at that hour by raising the drainage valve in the pool. The pool is 175 feet long, 60 feet wide and 10 feet deep at the west or deep end. The pool's capacity when full was estimated at approximately 400,000 gallons. The mechanism for draining the pool consists of an 18-inch concrete pipe set in the bottom of the north wall at the deep end from whence the water drained into an outlet box in the picnic grounds lying north of the pool, thence into the Salt River. The pipe's opening into the pool was without grillwork or other protection and was closed by a "Snow alfalfa" valve installed on tracks so as to slide up and cover the opening through the agency of a worm screw. The worm screw is operated by means of a rod or key which the operator inserts from the bank of the pool.
Pursuant to the plan for a double date, Smith opened the valve one-half hour early. Within five minutes thereafter, Elgas ordered the valve closed because it was not yet seven o'clock and there were swimmers
at the shallow end of the pool. Smith attempted to re-insert the key in the socket above the drain valve but had trouble doing so. Thornburg, who was sitting on the west bank of the pool between the two diving boards, decided to help Smith and dove [71 Ariz. 402] toward the drain to help insert the key. He was drawn into the drain where he became inextricably lodged. It should be noted there was a ladder on the north wall near and descending to the drain valve.
Discovering Thornburg's plight, Smith dove into the water three or four times in a vain attempt to dislodge him but had to give up when he developed cramps from his endeavors. Smith then attempted to cut off the pressure at the drain and thus to float Thornburg out in calm water by stuffing towels into the outlet box north of the pool. Other patrons and passersby tied ropes to Thornburg's legs in a vain attempt to pull him from the drain. In the course of time, the Tempe fire department arrived and aided by other official ...