*1 Dissenting Opinion Mr. Chief Justice Bell: I would affirm the decision of the Com- Workmen’s pensation Board the Court of Common Pleas the Superior all of which held Court, properly that plaintiff person other (or any the same situa- tion) can perform “light work aof general nature” entitled to total disability and there is benefits, n no on burden the Board oi? the prove Court work is light available.
Cummings, Appellant, Borough. v. Nazareth *2 Argued May 1967. Before C. Mus- 24, J., Bell, and JJ. manno, O’Brien Jones, Eagen, Roberts, Norman him Seidel, with Gus Milides and Herbert appellants. for Toff,
E. Jerome with him Brose, John G. and Hambrooh, Poswistilo & Brose, and LaBarr, Oldt Fox, & Ham- appellees. brooh, September by
Opinion 26, Mr. Justice Musmanno, 1967: July Darrel 1963, L. Cummings,
On 16 1/2 age of excellent years and dived health, into the operated and maintained owned, Borough A swim- of Nazareth. He failed surface. ming companion started in search found pool. lying He face downward on the floor helped lifeguard him him a ladder lifted where injured. pavement. seriously He suf- Darrel was the 4th vertebrae fered subluxation of and 5th crip- permanent left him a fracture which 6th, imprisoned ple, paralyzed to be the chest down, life. a wheel for the rest of his chair through guardian, Cum Mrs. Dorrace Darrel, mings in her own and Mrs. Woodward Woodward, against Borough brought right, Nazareth, suit negligence charging in the construction jury verdict returned a maintenance of the *3 plaintiff minor in sum $150,000, in of favor guardian of in in the sum $65,000. and favor judgment which was moved for The defendant n.o.v., app plaintiffs granted by the trial court and the have ealed.1 in pool, was built Nazareth which The by 8 ft. 5 100 feet. It is measures 200 feet 1/2 depths deep decreasing in the center and inches One- end into more areas. either shallow toward supposed designated they (so are meter boards water) lo- the level of the are meter above one be deeper side of areas. on either cated depth from one-meter board into dived Darrel ft. be 6 8 inches later ascertained of water, 7/8 experts Swimming pool deep. testified that the water safety a one-meter depth, under board should sake, 10 feet. It is course, 9 to obvious, measure deeper into which a the water swimmer dives, original lifeguards suit plaintiffs in their included the Knecht, Jr., Joseph and Merola as defend Hahn, Frederick Xh-ed lifeguards in favor was entered a nonsuit trial At the ants. appeal. figure in the they not do the less chance there will be that he hit bottom. will The Nazareth was encircled what is known as gutter a scum inches below the deck of the 11/2 regulated pools, well surface the water should gutter. day be or more less level with the scum On the of Darrel’s the water inches accident, level was about 5 gutter. plaintiffs below the scum Thus, contended, the meter intended to be board, one meter 39.37 reality, inches above the in water 44.37 inches was, above the water because of the recession of the water gutter. plunged below the scum This meant Darrel greater (incidentally distance before he hit water acquiring diving momentum) increased than would have been if normal the water been level with the gutter. scum might dealing
It seem that this meticulous inches and fractions thereof makes of the issue the case just matter technical measurement. It is indeed differential inches which could make the dif- safety injury. ference between If serious straighten had been able to out from his dive even one might para- inch above the he bottom, be a now plegic. good A it is is as as a miss, said, mile. How- margin safety danger between ever, was more than an inch. It at least feet 3 inches. provide
Why didn’t the owners extra depth, offer which would the swimmers a buffer of protection? “Among *4 relating water ing the duties to div imposed by have been which the courts on the proprietors bathing swimming pools ... of resorts or provide duties to use care are the . . . water a of depth, reasonably free safe or to obstructions, danger patrons in warn ... of the insuf depth or (48 obstructions of, in, ficient water” §15)2 2d 104, 129, A.L.R. duty premises owner to maintain such “It is in a contemplated
reasonably by condition safe uses thereof entering judgment said in lower n.o.v., court, swimming dangerous instrumental-
that a is not a ity borough not was the defendant that, therefore, charged responsibility goes with with the kind of which dangerous instrumentality. respect, it a cited Cooper Pittsburgh, v. this Court 390 Pa. where negli- city guilty that of held defendant was not gence alleged properly maintain because of failure to public analogy swing park. in a a The trial court’s drowning hardly apt. body say large is To a of saying compared swing water can be a is like compared they tiger are a can kitten because be to a family. danger is con- both of the feline So far as swing similarity more a there is no between cerned, large expanse a of than there between and a water is indispensable bicycle as and a bulldozer. Water, as destructive it in of can be life, is the maintenance all-annihilating a ocean itself is as fire. The empires populations graveyard of and treasure. deeper person Every his into than who enters water point peril height is in death. To establish this drownings necessary to refer to the is not countless ponds, in bath occur and even rivers, lakes, which tubs. danger of a is evident
The intrinsic lifeguards. people pub- presence Wherever in congregate licly dive and divert themselves swim, compelling lifeguard necessity. No the water, open larger ventures skiff into water with- than boat trailing or aboard its wake. lifeboat As fire, out a preparing servant, faithful din- is man’s which warming capable guarded, unless is, his home, ner and destroying occupants, and its that home wa- so, too, express implied.” invitation Jemison v. come those diving board was an Pfeifer, 81. “The invitation for Pa. representation implied danger use its use, an Marrow, Ferguson 210 F. 2d 520. City ous.” *5 rampage may ter on a inflict death and destruction earthquake. with the havoc of an Even when water may masking carries the most innocent a be face, body terrible threat to and limb. life, Borough employed The of Nazareth four at least lifeguards, ready speed eager able, at all times to to those who falter or in weaken or have water, any reason at all to need natatorial But assistance. lifeguards hitting these could not from save Darrel against pool head the concrete bottom of the they dig deeper had no facilities a bottom where apparently, they a dived, nor, did know deeper necessary bottom was to save backs. broken pool, July The Nazareth as it existed on 30, 1963, dangerous instrumentality though a even dedicated jury exercise health, and entertainment. found so supports and the evidence their A conclusion. deep sufficiently without a bottom a is as much
dangerous instrumentality as a roller coaster with missing, safety rail a ferris wheel without an belts, skating patches trip rink ice with bare and tumble the skaters. may passing, opinion
It be ab- said, its solving the defendant from ail blame in construction pool, and maintenance of the the trial court makes single expert not a mention of witnesses who testi- dangers pool, fied to the intrinsic built into the even though testimony pages their combined covered some 70 printed record. persuaded believing
The trial court was into there no hazard use of could be the Nazareth be- period years, over there had been a half cause, people into admissions million Millions of safely crossed the Atlantic before the Titanic Southampton boasting prodigality sailed of ball- orchestras and restaurants, recreational rooms, devices theretofore, aboard but found never mistress carry enough ice- from an save did not lifeboats to seas *6 watery grave passengers had de- the strewn pended ship’s
upon much as manifest the owners to negli- sumptuousness. safety over concern over as startingly gence clear of the Titanic’s owners was as iceberg it. as the which sank swimming operators the of the Nazareth While pool they might counting also their were swimmers pub- perusing many and manuals have been the books protect drowning or from on lished how swimmers bodily injury. defend- the Shekletski, serious Adam park the manager, knew what ant’s testified that he pool depth there- and, be in safe should the responsi- published by never consulted literature fore, subject. on ble authorities the borough and A. the Donald councilman of Stier, borough property the of the chairman of committee pool park, he and testified and the Nazareth safety any training in water never had had suspended while he knew the one-meter board was deepest part pool, in- made of the he never the over quiry suggested any this test to determine whether placement might endanger safety swimmers. lifeguard he said at the Nazareth
The head depth under the actual the water did not know minimum was unfamiliar with the one-meter board and depth requirement board under such a standard Collegiate by Official Y.M.C.A., recommended as Swimming Public Health American Guide, Scholastic Pool National A.A.U., Association, Institute, Swimming Pool and the Association Southeastern Department of Health. United States away Only board feet from which a few deep. 7 ft. the water was inches dived, 3/4. mishap might tragic have been averted if Darrel’s point proximate to a moved been to this had board depth. might greater The accident also have been if averted the operators placed a sign over the Darrel swimmers that board, warning was not the deepest part
Joseph Frederick a university-graduated Cook, Jr., testified that 8 or 10 swim- architect, he had designed pools and ming that he was familiar the custom, usage of wa- design respecting depth requirements ter under one-meter unequivocal- boards. He declared ly minimum 9 feet depth requirement was in the that, there was a custom and addition, usage board. industry provide a “well” under a one-meter He defined a “well” in the bottom “large saucer pool.” He in the stated there was no such well *7 pool. Nazareth
Another pool Robert Clotworthy, expert, testified that the minimum a depth requirement under one-meter board prior to 1935 date of the was, (the construction of the to subsequent feet that pool), 1935 the minimum depending 8 to ranged feet, on of the the type
A third William and div- expert, Lawson, swimming coach at ing Lafayette testified that he had College, been water since 1958 and teaching safety prior that, to depth custom and dictated a minimum 1935, usage of 8 feet under a one-meter subse- board, that, 1/2 to minimum quent requirement the was increased to 10 feet. presented defendant no borough expert
The testi- the plaintiffs experts to refute what mony had de- from the witness stand. clared the jury justified all this was well in evidence, On the Nazareth that concluding swimming pool not was at not least, operated provide or, constructed Dar- reasonable care which the was rel due him aas 434(2) Section visitor. business Restatement 2d, “It is the function of declares: the Torts, jury to de- in which it case any may termine, reasonably differ (a) has on the defendant’s conduct the whether issue, causing to the been a factor in the harm substantial plaintiff, . . .” municipality properly
The court below a said that patrons safety them owes but not an insurer the (Amon only duty Shemaka, the of reasonable care. say, 314). however, The on 419 Pa. court went then proof did not there no the defendant was question of it exercise reasonable care. But was jury defendant to determine whether the fact manifesting when not care had failed reasonable deepest place it not one-meter board over the did part post warning sign pool, it not when did pool fill the not over the one-meter when did board, gutter, not it did level of the and when scum specifying many familiarize itself with the manuals required depth under one-meter boards. if the defendant court said even that, lower proved guilty negligence, plaintiff, Darrel,
was voluntarily assumed because he had could recover diving pressing this did. the' risk of where he scarcely logic theory dives into waters court says enough argument. deep It to float danger any managers could not know from the one-meter involved in and around million cavorted half swimmers *8 single casualty. the court Yet meter board without assumption proceeds be- to indict Darrel on of risk danger obvious! was the cause successfully plaintiff charge the order assumption voluntary the the dan evidence of risk, patent. (Stark glaringly ger obvious be must 1). 388 Pa. Lehigh The short distance Foundries, Inc., the the one-meter board was to the bottom appear glaringly Indeed entire outer obvious. not pool woúld have Darrel believe that ance enough deep velocity to absorb the of his was water allowing space him to dive, sufficient underwater for straighten out and resurface. park manager lifeguards
If the and two of the had knowledge inadequate no of the water under the one- certainly charged meter board, Darrel could not be knowledge. with that
The court cited the case of Schentzel v. Philadel- Superior phia National Pa. Ct. Club, League patron where the Court held that a struck was game, foul ball at a ball not could recover game extraordinary he that at a knew ball was grandstand. for a foul ball to enter the There no analogy dangers game between the of a baseball upon pool. those attendant a swimmer in a The base- part ball fan knows that foul balls are a routine game. except Indeed foul balls are counted as strikes already when the batter has strikes. The base- two fly ball fan knows that foul often or over balls into grandstand opposite player if side ground, catches the ball before it falls to the this auto- matically nothing retires batter. But there is striking routine about one’s on bottom of a head unanticipat- was an This unforeseen, against. ed event which the swimmer not fend could court lower makes much of the that Dar- fact years rel had in swum this for five and had used period years. board over a of two or three very in means This, itself, little. Darrel never injured diving, anybody he never saw in- else so jured, nor had he ever heard of such an accident. The empty any drum record is as as a that Darrel had rea- taking any he was son assume risk when he dived board. from the one-meter plaintiff
Having declaring faulted the that he prove negligence part on failed of the de- guilty assuming that he was fendant, the risk, then, in says almost trial an court aside, a foot- *9 express complete evi- note that “there is absence pool.” This dence that Darrel struck the bottom of the arguing Lee the battle is like that General Avon by ending up Gettysburg argument de- and then fought. claring really If the that the battle AvasneArer not Darrel the bottom evidence did sIioav that struck pool, the case Avouldhave ended that, course, go necessary court it would not have been for the opinion. propositions many in its into the it submits testimony-in-chief after “Then Darrel said: brushing going against all of further, doAvn John sledge I hammer hit me and was it felt like a a sudden just brushing Johnny, lit- I out . . . after remember going Then the water. that doAvnin tle bit after still pow: I out.” was all of a Just like sudden, that, brought youth to the Darrel John had pool. floor of the he found him on the after surface by, treading at time Darrel Avent Avater John was Avould not scintilla of evidence Avhich but there is degree suggest trivial touch- that this the remotest ing anything Darrel’s to do with bodies injuries. “Q. John testified: The fact any way against Cummings you, dis- it in did brushed treading harm your didn’t A. it No, turb water? pain I you any A. of it? Q. as a result Did feel me. pain, no discomfort.” but there Avasno felt it, transitory argument court’s The lower touching not Darrel’s back does the bodies broke together any than which is thrown more water hold propo dishpan. case based on the whole from a collided the bottom that Darrel sition proof “It is not need to be direct. does That by prove necessary the cause of the accident di supports testimony which inferences evidence; rect jury reasonably may be drawn is sufficient.” Pittsburgh-Des 4.) Moines Pa. (Foley Co., *10 patient Dr. Rolf a Johnson testified: had “The causing severe blow on to be flexed the head the head violently. quite to forward It be severe would have to crush the vertebra and also to cause the subluxa- Q. tion. ... a trauma come could such Now, Doctor, pos- from a A. collision with another swimmer? It’s Highly unlikely. why Q. sible. Doctor? is that, And body A. the other swimmer has soft Well, because a give, and there and the will be a certain amount required give force the to a fracture dislocation of you impact. stop, It have neck, to have a sudden an be would like an automobile accident.” Hugo Verbruggen Dr. if it was C. J. asked possible in- for Darrel to serious have sustained his juries “by colliding with another swimmer who impossible.” replied: treading water?” He “It is description given by He Mr. said further: “On the it the swim- would seem that the contact with Milides, nothing just glancing mer was than contact, more a being by sledge- and that if one remembers struck a had been this would mean that the swimmer hammer, stationary object, in contact as with a solid and such during floor.” the the The trial court itself admitted supporting trial that there was evidence the floor-head- episode. charge banging jury, judge his plaintiffs’ theory of I under- said: “and the case, his bottom is that Darrel struck head on the stand it, you might From it infer that had . . . he questions these other . . . Well, the bottom struck jury, solely you.” are for members of fact, rendering judgment n.o.v. is a act drastic findings jury, overturns the fact- procedure. Judgment finding in our tribunal n.o.v. only when the facts are such entered that no be should persons agree could fail to reasonable two improper. hyperbole be stretched verdict was It would bursting point say no two in this case plaintiff persons agree had could reasonable not made out case. justi- entirely jury’s find that the verdict was
We question about fied the evidence and that they weight of evidence could well have arisen provid- duty in decided that defendant had done its place patrons ing for its at the a safe pass upon the defendant’s The court below did not judg- entering trial a new because of its motion for disposi- record is remanded ment n.o.v. The now *11 that for new with direction tion of the motion a trial, for trial the verdicts if motion a new is refused, the judgments jury entered of are to be reinstated and the thereon. and remanded.
Reversed part in the considera- took no Mr. Justice Cohen of this case. tion or decision Opinion Dissenting Bell: Mr. Chief Justice I dissent. plaintiff semi-paralyzed re-
The minor was Anyone diving in defendant’s sult of sympathies, badly but our is hurt deserves justify verdict a be sufficient is not and should or both. contrary law, or the to the evidence which contrary both. case was this pertinent correctly summarized the Court lower athletically and “He inclined was as follows: facts sophomore year. during de- He swam wrestled during pool 1961, of 1959, 1960, the summers fendant’s July [on the date accident 1963, until and During 1962 and summers 1961, 1963]. diving the one-meter board and both used high. was feet Darrel used diving which tower
2? pool per past at least 20 times* summer and diving approxi two three used summers board mately per performed day. or8 10 times He various including ‘running dives, a front ‘cannon ball’ dive,’ opener’ and ‘can which he described as more of splash ‘sloppy than a ‘kamikaze’ dive, swan’ and a in which the diver enters the water first with head arms outstretched in a imitation manner in horizontal wings descending airplane.” of a Majority Borough as the
Furthermore, admit: “The employed lifeguards, Nazareth at least four able, ready eager speed at all times to fal- those who ter or any weaken or have water, at all reason to need natatorial assistance.” Judgment
1. N. O. V. crystal exception- (a) plaintiff, It is clear an experienced ally undoubtedly been should have diver, actually every was aware the risks that he and other took so diver in this with which he (b) voluntarily he risk familiar, assumed injury off done this board which he myriad very times before these and for Springs reasons cannot recover. Podvin Somerton *12 Swim 406 Pa. Club, 384, 178 A. 2d 615; Schentzel v. Philadelphia League Superior National Club, 173 Pa. 2d 181; Ct. 96 A. Amon v. 179, 314, 419 Pa. Shemaka, Sports Enterprises, v. 238; 214 A. 2d Rauch Pa. and Pa. 81 A. 2d 367 548. Inc., 632, Philadelphia League v. In Schentzel National Club, Superior supra, pertinent- aptly, Ct., 173 Pa. the Court relevantly (pages 186-187) ly quote said and : at “We length pages on ‘By Prosser Torts from at 383-384: freely voluntarily entering any into relation or * throughout, ours. Italics
28
plaintiff
obvious
presents
danger,
situation which
will
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and to
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of
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look out for
and relieve the
himself,
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or sit
participate
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sponsibility.
[in]
obvi
all
assume
sports
at
and amusements
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balls,
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roller coasters,
ous risks of being
Wash.
105
Club Ass’n,
v.
Baseball
Seattle
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&
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Minneapolis
177 P.
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776;
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2. New Trial n.o.v. is not I would then affirmed, If the judgment clearly the verdict was so trial because a new grant against overwhelming weight unquestionably n up- The evidence most relied strongly the evidence. opinion evidence of two appellees on by the proper as to experts” construction “swimming other stoimming pool. Their every testi-
29 mony is so to tlie instant contrary actual in the facts dives 5,000 without injury well as case — —as common knowledge of who ever swam every layman private public or no as to be little or pools, entitled to weight. The of an opinion law is well settled that an expert is entitled to little actual against weight facts: Girsh 410 Pa. Som- Trust, 852; 189 A. 2d 455, merville 406 Will, Pa. Kadilak 496; 177 A. 2d 207, 405 Will, Pa. 174 238, A. 2d Cf. Richette v. 870. also Pennsylvania 410 R.R., Pa. 187 2d Common- 910; 6, A. wealth v. 421 Ahearn, 561; Pa. 218 A. 2d 311, 323, Commonwealth v. 401. 2d Woodhouse, Pa. 164 A. 242, 98.
In Girsh Trust, 410 said the Court Pa., supra, aptly (page 471) : “. . . ‘opinion con evidence is generally sidered of a low much not entitled to grade, weight against positive .” testimony actual facts’ . .
This Court power has the to remand the record the Court below with directions to consider defendant’s motion for a new trial, this Court grant itself can a new trial: Clewell v. Pummer, Pa. 592, 600, A. 2d 375; Downes v. Hodin, Pa. 2d 104 A. Richette 495; v. Pennsylvania R.R., 410 Act supra; Pa., of May 20, 1891, P. L. 101. §2,
If the judgment n.o.v. is not I would affirmed, a new trial grant for the reasons above set forth.
3. Remand If the n.o.v. judgment is not if this affirmed, Court does not grant new then I trial, would remand the case the lower Court to dispose of defendant’s for a motion new trial.