Opinion
No. 22577
Decided April 29, 1931.
Negligence — Exercise of care toward invitees of public bathing beach — Warning of shallow water around diving tower — Contributory negligence — Question for jury.
ERROR, to the Court of Appeals of Portage county.
This is an action to recover damages for causing death by negligence. The trial court entered judgment for $1,500. The Court of Appeals affirmed, and defendant prosecutes error here. The facts in general are as follows: The Lake Brady Company, defendant, herein referred to as the company, owned and operated an amusement park and bathing beach at Brady Lake, in Portage county. The public in general was invited to patronize, and was charged an admission fee on entrance to the park. A portion of the bathing beach in which the water at the deepest place did not exceed four feet was roped in for use of patrons who were not expert swimmers. Notices were posted at numerous places warning all who were not expert swimmers to remain within the roped-in area. No notices or warnings of any kind were posted pertaining to any part of the lake that was outside the roped-in area.
The company constructed a diving tower outside of, but near to, the roped-in area, for the use of patrons who chose to use it for diving. This tower had three platforms from which to dive. The highest platform was ten feet above the water, and was reached by stairs. The deceased had been at the park and bathing beach on several different days prior to the day on which he was injured. He stayed from one to three hours on each visit, and on each occasion used the diving tower, and in so doing made at least two or three dives from the ten-foot platform of the tower, using the springboard that was attached to the west side of the platform. That platform had hand railings about three feet high on the north, south and east sides, and no railing on the west side.
The deceased and a companion about his own age (twenty years), who had accompanied him on his former visits to the park, came to the park together on the day of the accident, and each made two or three dives from the springboard on the ten-foot platform. They then stepped outside of the south handrail to dive from the south side. The companion dived first and struck the bottom of the lake, but was not seriously injured. He hastened back to warn the deceased not to make the dive. He was too late. The deceased made his dive, struck the bottom of the lake, and thereby sustained an injury which was the direct and sole cause of his death very soon thereafter. The negligence charged by plaintiff against the company was its failure to inform the users of the diving tower that they could dive with safety only from the west side of the ten-foot platform, a fact which the company knew, but which the divers did not know. The company denied all negligence, and alleged full knowledge of all the conditions surrounding the bathing beach by the deceased, and averred that his death was caused by his own voluntary and reckless use of the diving tower in a manner and for a purpose for which it was not intended; that is to say, for diving from the south side of the ten-foot platform. The plaintiff denied that the deceased knew that the water was shallow on the south side of the diving tower.
The evidence offered by the company clearly showed that there were no signs posted or information given relative to the depth of the water outside of the roped-in area. There were no notices or signs on the diving tower indicating that it would be unsafe to dive from any point on the tower other than the west side where the springboard was located, unless the handrailing on the other three sides of the top platform be taken as some warning from the company not to dive from the sides where the handrailings were. It was easily practicable for divers to dive from the south side, notwithstanding the handrailing, just as the deceased did on the day of the injury.
Messrs. Dustin, McKeehan, Merrick, Arter Stewart, Mr. Neil P. Beall and Mr. Thomas V. Koykka, for plaintiff in error. Mr. Donald Gottwald and Messrs. Cook Harbourt, for defendant in error.
It was the duty of the Lake Brady Company, defendant, to exercise ordinary care to furnish a reasonably safe place for the use of its invitees in the park. This duty was stated by this court in Cincinnati Base Ball Club v. Eno, 112 Ohio St. 175, 147 N.E. 86, as follows: "One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitees."
This duty was further stated in S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A. L. R., 132, as follows: "Owners or lessees of stores owe a duty to the patrons of the store to exercise ordinary care to prevent accident and injury to the patrons while in the store, but they are not insurers against all accidents and injuries to such patrons while in the store."
A like decision was rendered by the Supreme Court of Oregon in the case of Johnson v. Hot Springs Land Improvement Co., 76 Or. 333, 148 P. 1137, L.R.A., 1915F, 689, the first clause of the syllabus of which is as follows: "Although the proprietor of a swimming pool is not an insurer of the safety of patrons, he is required to use reasonable care in furnishing reasonably safe conditions, and, if they are not reasonably safe, because of depth of water too slight to permit diving with safety, on failure to give notice of such condition and to warn patrons, the proprietor is liable for any resulting injury."
Whether the company in this case fulfilled the duty resting upon it was very largely a question of fact for the jury. The jury may have found that the diving of these two young men from the south side of the tower, with the results stated, was evidence sufficient to establish that neither of them knew before diving that the water was so shallow on that side of the diving tower as to make it dangerous for them to dive from that side. The company insists that the deceased was using the diving tower in a manner in which he was not invited to use it, and for that and other reasons he was clearly guilty of contributory negligence as a matter of law. The evidence was in conflict with respect to contributory negligence of the deceased, particularly with respect to his knowledge of the depth of the water on the south side of the diving tower. There is evidence manifest in the record from which the jury might have found the deceased free from contributory negligence, and might also have found that the company was guilty of the negligence charged, failure to warn; and this being true, the judgments of the trial and appellate courts must be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and ROBINSON, JJ., concur.