| N.Y. App. Div. | Jan 12, 1942
In an action to recover damages resulting from the death of plaintiff’s intestate, a youth sixteen years of age, who slid head first down a chute or slide at defendant’s swimming pool and struck his head against the bottom of the pool, judgment in favor of plaintiff reversed on the law and the facts, with costs, and complaint dismised on the law, with costs. The danger involved in such use of the slide was an obvious one, equally as apparent to the decedent as to the operator of the pool. We hold that decedent assumed the risk, and that a requirement of immediate supervision to prevent such use of the slide would be unreasonable in the circumstances. (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479" date_filed="1929-04-16" court="NY" case_name="Murphy v. Steeplechase Amusement Co.">250 N. Y. 479; Curcio v. City of New York, 275 id. 20; King v. Coast Holding Co., Inc., 251 A.D. 850" date_filed="1937-06-18" court="N.Y. App. Div." case_name="Mahon v. Brooklyn Bus Corp.">251 App. Div. 850.) Carswell, Adel, Taylor and Close, JJ., concur; Lazansky, P. J., dissents and votes to affirm, with the following memorandum: There were questions of fact for determination by the jury: (1) Did decedent know, or in the exercise of due care should he have known, that it was dangerous to slide head first into the pool where it was three feet deep? (2) In the exercise of reasonable care, was it the duty of defendant to warn its patrons of the danger of sliding head first into the pool at the place stated and, if so, did it fail in that duty? The jury has by its verdict determined these questions favorably to plaintiff and its determination should not be disturbed. [176 Misc. 373" date_filed="1941-04-02" court="N.Y. Sup. Ct." case_name="Levy v. Cascades Operating Corp.">176 Misc. 373.]