Harris v. LaQuinta-Redbird Joint Venture
522 S.W.2d 232
Tex. App.
1975
Check Treatment

*1 Elizabeth HARRIS, Appellant,

LAQUINTA-REDBIRD JOINT

VENTURE, Appellee.

No. 8268. Appeals Texas,

Court of Civil

Texarkana.

Feb.

Rehearing Denied March

CORNELIUS, Justice. Appellant against appellee filed suit for resulting drowning damages from the son, Harris, appellee’s her Ned motel swimming pool. At the close of evidence parties from both the District Court direct- nothing parties ed take will a verdict. to as in be referred the trial court. alleged upon Plaintiff based her case pro- negligence failing defendant lifeguard, a failing vide to warn of ab- lifeguard a failing sence of to have a separate a throwing line required as available Ordi- nance No. 8479. We have concluded that plaintiff made a on case for the proximate negligence issues of cause required a life as by the and that the directed ver- improper. dict was therefore propriety In judging the in directing court’s action verdict disregard all must adverse evidence and evidence, consider together with properly all reasonable drawn inferences therefrom, plaintiff’s favorable to case. If probative any negli there was evidence of gence cause the directed defendant improper. verdict Since proceed elected to with its evidence after case, plaintiff her closed the issue is to be decided from the evidence on the whole plaintiff’s rather than on case case alone. Trial, 220 563. evidence, favorably viewed most case, plaintiff’s was as follows: Ned Harris in Dallas with his sister attending Expío young people and other They were at defendant’s staying ’72. mo- swimming pool had a tel which small part group, its facilities. Several Ned, including gone swimming there incident, Wednesday night on without Smith, Dallas, appel- for & Woodruff Thursday night again others on Ned and lant. pool swimming. went While he was Henderson, evening Ned dif- encountered some Williams, Westfall & Bailey, ficulty began help. Two to call for Dallas, appellee. There was evidence that girl, companions, succes- provided hold at the sively the water and tried to which were got merely straight poles without unable do Mr. Al- aluminum of him but were so. motel, any buquerque, was a at the hook or device. The court guest who required to therefore decide whether struggling saw Ned water pull By straight such a jumped in to without hook or rescue. ing sub- device was a “life within the time he Ned had into *3 not, merged of the it meaning and at or near the bottom of ordinance. If the found evi pool, get not to could have the Albuquerque the and could from him the of his own dence defendant violated the ordi because of resistance pole. then nance in clothing and to life shoes. in, negligence per he but Such a violation would be out and friend of his dived p. Negligence, two se. 40 11 was also unable reach Ned. These Sec. to Tex.Jur.2d 456; poles Alpine Telephone Corporation grabbed aluminum v. men then two 335, McCall, 143 nearby and them to reach Tex. 184 S.W.2d 830 which were used hook, (1944). The construction of the the As neither had victim. by question was a facility men law to be determined loop pulling the of or other Statutes, pull the court. 53 152 get or lift Sec. could "ahold” of Ned to not Tex.Jur.2d Walker, 219; 291, p. 26 push Freels v. 120 Tex. him could out of the but opinion (1930, adopted). 627 him S.W.2d attempt him in an to move to shallow same of general construction which rules After some time considerable water. municipal apply apply to to statutes also difficulty they finally pushing in succeeded Waco, City 223 ordinances. Reed v. of boy portion the of the shallow (Tex.Civ.App. 247 writ pulled S.W.2d Waco reached and was where he could be ref’d). prime in objective such con Attempts him to revive out of the water. of is to the intention struction determine that because failed. testified legislative body. Sparks, v. the poles pulling facility it Bolton the or no hook n 362 946 To assist (Tex.1962). it S.W.2d move the was difficult to “ may ascertaining legislative intent time, resort don’t . . took some I know . be had to these Among several sources. much, how it or minutes but took seconds object purpose are of course, (1) the the en they to do this because the of prevent sought actment be evils to aluminum, long are we use them ed, Corporations, Municipal 39 push, no because there was pull, to 594; & Hargrave Sec. v. Texas way further testified ahold.” He Co., Ry. (Tex.Comm’n P. 12 1009 S.W.2d with poles equipped had been that if the App. 1929, jdgmt. adopted); (2) the mean he have type some device of could used, actually 53 ing the words recovery. of the speedier effected a One Tex.Jur. Statutes, 146, 147; 2d (3) Secs. attempt to in an bent as it was used placed upon construction the enactment push Ned to the shallow area.

by charged or agencies officers City Dal- Ordinance 8479 of the No. with its administration enforcement. or public operation Kadane, regulating las Calvert 427 S.W.2d Dallas, semipublic pools, required ; swimming (Tex.1968) Heard “safety equipment” be available writ (Tex.Civ.App. one unit of S.W.2d pools meaning pools determining at all all e.). such at times ref’d In n. r. made lifesaving equipment used, will unit of the an be use. One words including provisions defined the ordinance harmonize the various enactment, given their be . .a crook and the words will life except type length ordinary meaning, handle with minimum usual and ” par feet; where or words of a technical words of twelve device, ei art, rather one of activity used without such trade or ticular de designation ther given meaning recognized will be art, appears vice. This further illustrat persons engaged particular Statutes, phrase ed the additional “with minimum activity. trade or 53 Tex.Jur.2d length If the ordi Lock, handle twelve feet”. p. 217; 259 S.W. Hindes v. straight any adopt meant a without nance (Tex.Comm’n App. jdgmt. else, simply ; thing said “a Kelso Texas & N. R. ed) O. Co. length.” The twelve Inc., at least feet Building Material Co. 250 S.W.2d presup n. use of the word “handle” seems to (Tex.Civ.App. writ ref’d Galveston pose something more. ; art. that there would be r. e.) Vernon’s Tex.Rev.Civ.Stat.Ann. case, In the latter considering meaning In persons engaged with that or familiar used, “life words we believe the term art, activity to ex trade or is admissible usage, parlance of common is not one plain meaning. Statutes Sec. C.J.S. *4 in a technical was used in the ordinance 793; Railway p. Order of Conductors applied trade particular sense as to the Swan, of America 67 S.Ct. U.S. activity regulated the which ordinance 471; 91 L.Ed. Pacific Com Southern —the public swimming pool operation of a Brown, pany 295 P.2d Or. As lifesaving relating activities to it. the (1956); Hillman v. Northern Wasco applied meaning of the term when County District, People’s Utility Or. testimony activity, only the was to such (1958). 323 P.2d 664 Gray, witness, own Dean defendant’s from Quality of the Sur- who was Chief Water object Considering first the City of the of veillance Section purpose the ordinance and the evils of Department. his duties Health Part of sought prevented, to it is obvious the pools and inspection swimming of the requirements equipment the for lifesaving by required the lifesaving equipment designed to facilitate the rescue of pole” that “life He testified Ordinance. persons danger drowning. of re With names for “shepherd’s crook” were two spect pole”, a “life to it is knowl common life equipment, that a piece same the edge and was confirmed inferences ‘U’, a U- pole a like . has looks testimony, pole from the that a without a shepherd’s shaped like a end on looks pulling reasonably device is to effective say question you the crook.” To “When persons rescue those who are still crook, talking pole shepherd’s you’re conscious and able to grasp the so that thing, is that cor- about one and the same pull whereas, safety; others can them a to “Yes, sir, . ”. rect?”, he answered pole with a hook or pulling device can be Gray, familiar The who was persons used to retrieve unconscious who trade meaning the with the words may subject still be alive and to resuscita they applied which and who or business to though tion even submerged. are In ad- charged an with the also officer view of the comprehensive fact a unit of the ordi- ministration and enforcement lifesaving equipment was envisioned nance, Heard ordinance,* weight. entitled to the it seems unreasonable Dallas, supra. City of suppose requirement sat would be by pole isfied a which be effective the all of aids to construction Since the former case but not the latter case. trial court were available the which phrase “life crook effect, it was believe were to the same pole” surely a did not mean either required “life that a with a hook or or one established device * telephone required ring pool, equipment portions with a the also included hospi ambulance, buoy rope, throwing line, separate numbers list of for with selected deep separating guard units. rescue line tals and shallow boy equipped must submerged long be one had not been when ordinance jury began his

hook or other device. The friend to use poles. Albuquerque could have found from the evidence first observed boy “bobbing up have such a life and down” in the water. defendant did not available, guilty rendering thus defendant When made his unsuccessful negligence per by entering at rescue se. Ned had descended to or near the bottom necessary It next becomes to determine pool. Albuquerque and his friend from to be if the evidence inferences poles. then out and used the Reason therefrom, negligence drawn able minds infer from this evidence been a a life could have that, required by had the been as proximate Har- the death of Ned cause of could have been re ris. quickly enough prevent trieved Prompt death. resuscitation efforts are case, proxi context this In the frequently though successful even the vic be an omission mate cause would act or already tims have lost when consciousness inju which or failed to prevent caused begun. Many such efforts cases ry. Negligence, See held that similar circumstances to those ordinarily It question is fact here were sufficient to make a fact issue of that fact jury. In the determination on proximate cause. The cases cited are latitude question allowed broad is analogous negligence on the issues to infer cause from the evidence analogous proxi but are issue of on the acci surrounding an and the circumstances *5 mate Luck Lakes cause. See v. Buffalo Thompson, 431 S.W.2d dent. Thoreson v. Inc., (Tex.Civ.App. 144 S.W.2d 672 Amar 1968); Hopson v. Gulf Oil 341 (Tex. 1940, ; jdgmt. cor.) illo writ dismd Brumm 1, Corp., (Tex. 150 352 Tex. 237 S.W.2d Goodall, 212, v. Ill.App.2d 16 N.E.2d 147 Brockman, 135 S. 1951); Weingarten v. Grau, supra; (1958); 699 McFarland v. 1940, opin. (Tex.Comm’n App. 698 W.2d Langheim Dept. Fire v. Denison Swim 308, Smith, 134 adopted); Peveto v. Tex. Ass’n., 386, ming 21 Pool 237 Iowa N.W.2d This (1939, opin. adopted). 133 572 S.W.2d 295 (1946); Collins v. Riverside Amuse it especially drowning is so in cases where Vaux, Co., supra; Lindsey ment Part De v. proof that possible produce is not direct 445, Cal.App.2d 50 123 144 (1942); P.2d life person have been rescued if a could 593, Nordgren 149 Strong, v. Conn. A. guard proper equipment had lifesaving or ; (1930) City Longmont v. Swearin Grau, provided. been McFarland v. gen, supra; Manhatten Brotherton v. App., (St. Ct. of Mo. S.W.2d 91 Louis Co., Imp. Beach 67 N.W. 479 Neb. 1957); Amusement Collins v. Riverside (1896). analysis A that in reveals careful Co., (1944); 61 Ariz. 145 P.2d 853 Park the cases of this which have held evi Swearingen, Colo. Longmont insuffi dence of cause to be (1927). P. 1000 cient, indicate the there was no evidence to A surrounding circumstances the death. testimony of de In this case body lying under or found simply witness, Albuquerque, made fendant’s own upon indication floating with no pole it that the with a hook clear lack of See, for ex how or when death occurred. significant delay pulling device caused ample, Perkins, Hahn 228 N.C. only poles because the rescue S.E.2d 854 (1948). por push used to the shallow re For the reasons stated and view pool where he could be tion of the approved Hopson the liberal rules testimony also made trieved His hand. supra, many Corp., Gulf Oil other cas- it would have been clear retrieval es, probative we there was evi- equipped with a conclude quicker pole been testimony that dence of such causal relation foresee- The also confirmed hook. speed- make a say “A. I would ability finding required for a as are recovery.” (SF239) ier plaintiff proximate cause, that en- titled such issue submitted to have interpretation We believe a reasonable jury. 2 and 3 there- error Points of testimony is that neither Albuquerque’s fore sustained. had a device. Of hook course, testimony about there was other the cause judgment is reversed and that there was poles. One witness testified oth- remanded new trial. Plaintiff’s for a pool except a no at all at the wooden point er error is overruled. long. feet Another witness stick about ten five testified about that there was one ON REHEARING long any feet which did not have hook. rehearing, appellee In its as- motion “shep- manager testifed that The motel Albuquerque only serts testified that Mr. equipment part herd’s crook” was a used did not have a hook he kept and that it was the motel device, and that therefore there pool area Harris drowned. Mr. when Ned is no evidence used Nagy morning after the testified that companion did not have such hook. drowning he and found inspected pole, “the which hook” had been Mr. part as fol- testified bent, testified Mr. lows: the pole he used was the one which was I saw these aluminum attempt. bent These were rescue there, up, picked and I one ... I simply conflicts in the which picked up gave Joe, another one it to por- could resolve the adverse pushed both us then disregard tions of which we must in deter- time, This some don’t took I how know mining the a directed verdict propriety of much, but it took seconds or minutes to against appellant. course, do this because the rehearing respectfully is motion for aluminum, are long and use them overruled. push, pull, because there was no way *6 (SF224) ahold.”

* * * * * * “ . I, . . and we both used the Joe one on each side of

. . (SF225) . “Q. “A. [******] have a hook on it ?” No, Did sir.” you talked about Thomas Margarita J. LACKEY SAENZ et No. 931. et al., al., Appellees. Appellants, “Q. you Had it had a hook Appeals Texas, Court Civil placed it down into the Corpus Christi. body pulled hooked onto April him out?” May 8, Rehearing Denied end “A. The hook on the speedier recovery make a . . “Q. had there been pole hook, you could have least made you?” easier