Appeal from the Circuit Court of St. Clair county; the Hon.
HAROLD R. CLARK, Judge, presiding. Judgment affirmed.
JUDGE BARDENS DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 28, 1958.
This is a wrongful death action growing out of the drowning of Robert Edward Brumm, plaintiff's intestate, a fourteen year old boy, in the Westhaven Swimming Pool which is located just south of Belleville and which is operated by the defendant as a public pool to which an admission fee is charged. The jury returned a verdict in plaintiff's favor and assessed damages at the sum of $10,000. Post trial motions were denied and this appeal follows.
Inasmuch as the contentions of the defendant on appeal go solely to the questions of whether the trial court should have directed a verdict and in the alternative whether the verdict is against the manifest weight of the evidence, it will be necessary to detail the evidence at some length.
The Westhaven Swimming Pool operated by Defendant Goodall is 105 feet long and 45 feet wide, the length being north and south. It is surrounded by a walkway or deck about six and one half or seven feet wide. Just south of the pool is a wading pool for small children and south of the wading pool is an area 15 or 20 feet in depth where benches are placed to sit and sunbathe; a similar area is located north of the swimming pool. The entire pool area is enclosed by a fence. Entrance to the pool area is gained through the bath house located in the middle of the east side.
The water in the swimming pool ranges in depth from nine feet at the north end to three feet at the south end. There were two diving boards on the north side, the high board was approximately 10 feet above the surface of the water, and the low board is approximately four feet above the surface. There are depth markers placed on the top of the concrete wall around the pool; this wall is about 14 inches thick and five inches above the surface of the water. The depth of the water is painted with blue on a white background upon the top side of that wall or ledge with numbers eight or nine inches in height. These depth markers are not visible to a person in the water. There are no floats or ropes to mark the depth of the water. At a point 40 1/2 feet from the north end of the pool, there are ladders on the east and west sides for bathers to get in and out. There are also ladders at the northeast and northwest corners of the pool, and one ladder in the middle of the south end of the pool. There is one lifeguard chair elevated about six feet above the deck and on the west side of the pool about 15 feet from the north end.
Defendant employed Charles Nichols as manager. Nichols was principal of a grade school in Belleville and a city alderman. He was in charge of the check room and was given equal authority over the lifeguards with the owner Goodall. He had served as manager of the pool for defendant and prior owners for 13 years prior to 1955.
Neither Nichols nor defendant held certificates pertaining to life saving, but a water safety instructor, certified by the Red Cross, was employed to instruct the lifeguards employed at the pool. Both Nichols and defendant had, however, frequently seen demonstrations of life saving technique and knew how the Schaefer method and Arm Lift method of artificial respiration should be given.
Defendant had six or seven lifeguards subject to call in 1955, but the number of guards on duty at any time would be governed by the size of the crowd in the pool. All of the guards held either junior or senior life saving certificates issued by the Red Cross. There is no difference between a junior and senior certificate insofar as the physical requirements are concerned; swimming capability and life saving capability are identical; the difference is that below a certain age only junior certificates are issued and the test given is oral. For a senior certificate a written test is given although it requires no additional knowledge other than that required for a junior certificate.
The three guards on duty at the time Brumm was drowned were:
(A) Jay Nickel, then 17 years of age, who held at that time a junior life saving certificate. At that time he had completed his junior year in high school. He was graduated from high school the following year and at the time of the trial was a freshman at Washington University. He had worked in the bath house at the swimming pool since he was 15 or 16 years old, and had served as lifeguard there in the summer of 1954, and in 1955. He was not quite six feet tall and weighed 180 pounds. He knew both the Schaefer method and Arm Lift method of artificial respiration.
(B) Kenneth Castelli, also a student at Washington University, who was then 21 years of age and held a senior life saving certificate from the Red Cross. He was trained in both the Schaefer and Arm Lift methods of artificial respiration.
(C) Terry Chismore, then 16 years of age, held a junior life saving certificate which he had received in 1954 when he had worked in the check room at the swimming pool, and started as lifeguard when the pool opened in 1955. He was trained in both methods of artificial respiration.
The three guards on duty at the pool that afternoon customarily rotated their positions every 20 or 30 minutes. One of the guards was seated in the elevated chair located about 15 feet south of the northwest corner of the pool. His primary responsibility was the diving boards and the deep end of the pool. Another of the guards was to walk between the ladder on the west side of the pool down to the southwest corner. His primary responsibility was the shallow end of the pool. The other guard ...