Sneed v. Lions Club of Murphy, North Carolina, Inc.

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159 S.E.2d 770 (1968)

273 N.C. 98


No. 29.

Supreme Court of North Carolina.

February 28, 1968.

*772 T. M. Jenkins, Robbinsville, Coward & Coward, Sylva, Potts & Hudson, by Jack H. Potts, Brevard, for plaintiff appellant.

Clarence N. Gilbert, Asheville, for defendant appellee.

HIGGINS, Justice.

The sole question before the Court for review is whether the plaintiff's evidence was sufficient to survive the defendant's motion for nonsuit. On this question, all evidence (which the Court admitted) must be considered in the light most favorable to the plaintiff. Aasar v. City of Charlotte, 265 N.C. 494, 144 S.W.2d 610, 14 A.L.R.3d 1008. This is so because the jury may find according to plaintiff's evidence. Barefoot v. Joyner, 270 N.C. 388, 154 S.E.2d 543; Taylor v. Brake, 245 N.C. 553, 96 S.E.2d 686; Scarborough v. Calypso Veneer Co., 244 N.C. 1, 92 S.E.2d 435, 57 A.L.R.2d 878. It is the province of the court to determine whether the evidence, circumstantial, direct, or a combination of both, considered in the light most favorable to the plaintiff, is sufficient to permit a legitimate inference of the facts essential to recovery; and it is the province of the jury to weigh the evidence and to determine what it proves or fails to prove. Thomas v. Morgan, 262 N.C. 292, 136 S.E.2d 700; Lane v. Dorney, 252 N.C. 90, 113 S.E.2d 33, overruling the same case on rehearing, 250 N.C. 15, 108 S.E.2d 55.

In the statement of facts the Court has detailed only that which tends to support the plaintiff's cause of action. On the question of nonsuit, even contradictions in *773 the plaintiff's evidence are to be resolved in his favor. Ordinarily, when the Court reverses a nonsuit, it discusses the evidence only to the extent necessary to show the legal basis for decision. Poindexter v. First National Bank, 244 N.C. 191, 92 S.E.2d 773, 58 A.L.R.2d 360. At the new trial, the jury should be uninfluenced by this Court's analysis of the evidence. Only that which is favorable to the plaintiff has been reviewed.

This Court determines as a matter of law what constitutes legal evidence sufficient for jury consideration. Its weight is exclusively a jury function. State v. Squires, 272 N.C. 402, 158 S.E.2d 345.

Many courts and commentators have discussed the duties which swimming pool operators owe their paying invitees. The following appears to be a fair summary of the rules applicable to the questions presented in this appeal. The operator of a swimming pool for hire does not insure the safety of his invitees. He does, however, owe them the duty to exercise due care to see that his premises are reasonably safe for the purposes for which he offers them to the public. He is under a duty to install and maintain proper signs warning patrons of dangerous depths of the water. He should exercise ordinary care to provide a sufficient number of competent attendants to supervise the bathers and to rescue any of those who appear to be in danger. He should institute a timely search for a missing bather on ascertaining that such bather may have been lost in the water. Hahn v. Perkins, 228 N.C. 727, 46 S.E.2d 854, citing many cases, including 33 A.L.R. 598, 58 Am.St.Rept. 709.

"The proprietor of a public bathing resort has a duty to place and maintain signs to indicate water depths and to provide adequate supervision. He is under a duty, not only to be prepared to rescue those who may get into danger while bathing, but also to act with promptness and to make every effort possible to locate those who are known to be missing, and, if necessary, to rescue and resuscitate the missing person. Thus, he will be held liable for a drowning which occurs as a result of the inattention of a lifeguard, or for the failure to perform the duty of effecting a prompt rescue. * * *" 4 Am.Jur., Amusements and Exhibitions, § 84. "Proprietors of a bathing resort, in discharging the duty of ordinary care for the safety of patrons, may be obliged to keep someone on duty to supervise bathers and rescue any apparently in danger; and may also be held liable for negligence if, on information that a bather is missing, they are tardy in instituting search." 22 A.L.R. 636. (This rule applies to invitees. Adams v. American Enka Corp., 202 N.C. 767, 164 S.E. 367.)

In this case we have a 14 year old boy who could not swim entering a swimming pool in which the depth of the water increased from 2½ to 8 feet. The only notice of depth marked on the pool was this at the deep end: "Diving BoardTwelve feet". In the middle of the pool, a distance of 50 feet from either end, there was a rope secured at each side of the pool at a point where the water had a depth of 5 feet.

At the time the plaintiff's intestate drowned, more than 50 persons were in and around the pool, many of them children. One junior lifeguard, 16 years of age, was in charge. When the mother missed her son, she asked him if he had seen a little white headed boy. He directed her to inquire of the guard whom he had relieved and who was in the act of leaving the parking lot outside the enclosure. The guard drove away before the mother was able to get to him. According to the evidence of the lifeguard, the water in the pool was so murky as a result of the lime treatment that an object in the water could not be seen at a depth of more than 2 feet.

The facts in evidence, when tested by the applicable rules of law, made out a case for the jury. The judgment of nonsuit is


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