48 Neb. 563 | Neb. | 1896
This was an action under chapter 21, Compiled Statutes, by Abigail A. Brotherton, as administratrix of her son, Hiram Brotherton, to recover damages on account of the death of her intestate, alleged to have been caused by the defendant’s negligence. At the. close of the evidence the district court directed the jury to return a verdict for the defendant. The correctness of this instruction is presented for review.
The evidence discloses that Brotherton, a youth seventeen years of age, together with one Campion, a youth of about the same age, both residing in Omaha, went together on the 8th day of August, 1892, to Lake Manawa, a summer resort in Pottawattamie county, Iowa. There is on the shore of this lake an establishment maintained by the defendant company for the purpose of affording facilities to bathers. There are bath-houses, toboggan slides in the water, a platform for diving, and it seems, also, certain other resorts on the shore, such as a restaurant, a photograph gallery, and a shooting gallery. The privileges of these facilities are let out to the public by the defendant company for hire. Brotherton and Cam-pion arrived at the beach about 4 o’clock in the afternoon, paid the customary fee for bathing privileges, donned bathing suits, and entered the water. Campion seems to have been very expert as a swimmer; Brotherton was able to swim, but was not expert. They remained in the
Except on one point, we think the facts were such as to fully warrant the action of the trial court. There is evidence tending to show that, proceeding from the shore outward, the water was for more than one hundred feet comparatively shallow. Through this shallow water extended the diving platform referred to. In it were also constructed two toboggan slides. A few feet beyond the end of the platform and the outer toboggan slide there is evidence tending to show that there was a sudden deepening of the water; so that in the course of a very few steps it deepened from five or six feet to fifteen or twenty. Brotherton’s body was found in this deep water. There was on the outer toboggan slide a sign as follows: “Dangerous! Keep Off Unless You Can Swim!” This mani
But we think that there was evidence relevant to the issues in regard to subsequent facts which should have been submitted to the jury. Even though the defendant had not been in anywise negligent in providing facilities for the bathers, and although the deceased by his own negligence may have placed himself in such a situation
Out of abundance of caution it may be well to repeat that our comments on the evidence have been based upon that theory of it most favorable to the plaintiff, as is required by the manner in which the case is presented. The evidence upon the vital points was conflicting. It was for the jury, and no more for this court than for the district court, to pass upon; and we are expressing no opinion whatever in regard to the weight of conflicting evidence, or even as to the inference which the jury should draw from undisputed facts. We merely hold that the evidence, viewed in one light, justified an inference favorable to the plaintiff, should the jury draw such inference.
Reversed and remanded.