Wilkins v. Warren

108 S.E.2d 230 (1959) 250 N.C. 217

Allen B. WILKINS
v.
Earl WARREN.

No. 525.

Supreme Court of North Carolina.

April 29, 1959.

Wilson & Johnson and Bryan & Bryan, Dunn, for plaintiff, appellee.

McLeod & McLeod, Dunn, for defendant, appellant.

BOBBITT, Justice.

Defendant rightly concedes that plaintiff was an invitee. Hahn v. Perkins, 228 N.C. 727, 46 S.E.2d 854.

In 52 Am.Jur., Theaters, Shows, Exhibitions, etc., § 71, the general rule is stated in these words: "The owner or proprietor of a bathing or swimming resort or pool as a place of public amusement is not an insurer of the safety of his patrons, but he must exercise ordinary and reasonable care and prudence to have and maintain his place and all appliances intended for the use of patrons in a reasonably safe condition for all ordinary, customary, and reasonable uses to which they may be put by patrons, and to use ordinary and reasonable care for the safety of his patrons, and he may be liable for injury to a patron from breach of his duty." To like effect: 86 C.J.S. Theaters and Shows § 41; Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756; Hahn v. Perkins, supra; Annotation: "Liability of private owner or operator of bathing resort or swimming pool for injury or death of patron." 48 A.L.R. 2d 104-171.

In Hiatt v. Ritter, supra, this Court, in opinion by Denny, J., quoted with approval this statement from 26 R.C.L., Theaters, Shows, etc., § 20: "Where a party maintains a bath house or a diving or swimming place for the use of the public for hire, and negligently permits any portion of the same or its appurtenances, whether in the house or of the depth of the water or in the condition of the bottom or in things thereon, to be in an unsafe condition for its use in the manner in which it is apparently designed to be used, a duty imposed by law is thereby violated; and if an injury to another proximately results from the proper use of the same without contributory negligence, a recovery of compensatory damages may be had." [223 N.C. 262, 25 S.E.2d 757.]

Appellant relies principally on Richardson v. Ritter, 197 N.C. 108, 147 S.E. 676, and Hiatt v. Ritter, supra; but these cases are factually distinguishable.

In Richardson's case, the plaintiff dived into shallow water and was injured when his head struck the concrete bottom of the pool.

In Hiatt's case, the alleged underwater hazard was a bolt, which fastened a brace that supported a slide board and protruded approximately ¾ of an inch beyond the nut. The plaintiff, instead of going down the slide and getting off at the end in the usual and customary manner, elected to jump off of the side of the slide board and in so doing his foot was hurt when it came into contact with the protruding end of the bolt. It was held that the defendant could not have reasonably foreseen that this bolt, a part of the slide board equipment, would cause injury.

It is noted that the evidence is silent (1) as to the depth of the water on either side of the underwater cinder block wall and (2) as to the level of the surface of the water in relation to the top of the dam.

The statement attributed to defendant would seem to indicate that ordinarily or at times the level of the water in the pond was such that a portion of the cinder block wall was exposed to view.

When considered in the light most favorable to plaintiff, there was ample evidence from which the jury could infer that defendant, who had knowledge of the underwater cinder block wall, could and should have reasonably foreseen that it was a hazard of such nature that injury to his patrons on account thereof was probable. On the other hand, the evidence was not such as to necessitate the conclusion that plaintiff, who had no knowledge or warning of the presence of the underwater cinder block wall, was contributorily negligent when he dived into the pond.

It is noted that plaintiff, when he made his dive, was in close proximity (5 or 6 feet) to the diving board; and that his dive was towards the "deep water" portion of the pond. It is noted further that plaintiff did not strike the bottom of the pond but a cinder block wall, concealed from his view by the muddy water, extending upward from the bottom of the pool; and nothing in the evidence indicates that plaintiff could and should have anticipated the presence of such cinder block wall or other obstruction between the bottom of the pond and the surface of the water.

Plaintiff was not injured because he misjudged the depth of the water into which he dived. There is nothing to indicate that he would have received any injury by diving into the pond under the circumstances disclosed by the evidence if the cinder block wall had not been there.

Upon the evidence, the issues of negligence and contributory negligence were properly submitted for jury determination.

No error.