Phillips v. . Orr

Manning, J. This case coming to us by appeal from a judgment of nonsuit at the close of all the evidence, we must, as has been frequently said by this Court, construe the evidence “in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury might have found those facts from the testimony.” Morton v. Lumber Co., ante, 54, and cases cited. The theory upon which plaintiff seeks to recover, as appears from the complaint, the evidence and briefs filed, and the only theory upon which he could recover, is that defendants were engaged in the business of carrying on a public bathing resort, and were negligent in performing the duties imposed upon them as such proprietors. The cases relied upon by plaintiff not only to show the extent of the duty imposed upon defendants, but to support his contention that his Honor erred in not submitting the case to the jury are Barrett v. L. O. B. Imp. Co., 40 N. Y. Supp., 764; Brotherton v. Manhattan Beach Imp. Co., 69 N. W., 757 *586 (Neb.); ibid., 67 N. W., 479; Larkin v. Saltair Beach Co. (Utah), 3 L. R. A. (N. S.), 982; Boyce v. Union Pacific R. R. Co. (Utah), 18 L. R. A., 509; McGraw v. District of Columbia,. 25 L. R. A., 691; Bass v. Reitdorf (Ind.), 58 N. E., 95; 29 Cyc., 466-. These cases deal with the duty owing by the owners or proprietors of public bathing resorts. In the view which we regard as decisive of this appeal, we-deem it unnecessary to determine the extent of duty or measure of liability of a person or corporation maintaining a public bathing resort. The initial question to be determined is-whether, upon the evidence, the defendants were maintaining a public bathing resort, and we think the evidence, considered in its most favorable view for the plaintiff, fails to show that the defendants were operating such a resort, or in fact were conducting' any kind of a bathing resort. They had no control over the park or the lake, by lease or otherwise, except to prevent nude persons from bathing in the lake, itself a public nuisance. Any person desiring to bathe iü the lake properly clothed could do so, without the permission of either of the defendants, and without paying toll to them. The. defendants-had no lease upon the lake or the park, nor any exclusive privileges of bathing, furnishing bathing suits, or any control over those bathing in the lake. The fact chiefly relied upon by plaintiff is that the defendants had six bathing suits, which they rented to persons desiring-to bathe, at 25 cents each; but this is wholly insufficient to entitle the defendants to be designated as the proprietors of a bathing resort, in view of the other facts presented by plaintiff through Mr. Latta. They could as well have furnished these from an office or store in the city a half mile away. The defendants did no advertising, by poster or in newspaper, nor does it appear that they even solicited any person to bathe in the waters of the lake. Those who had their own bathing suits bathed in the lake ad libitum and without price. The defendant Phillips was present as a public officer to prevent those, so-evilly inclined, from bathing nude in the water. Further, it clearly appears from the evidence that the defendant Phillips, observing the appearance of the intestate, directed him to come out and to dress. The intestate did come out; went towards the “dressing-room” — a rude structure built by nailing a few planks to some trees, to screen the bathers-while dressing and undressing — and entered the lake again at a place concealed by bushes, out of the sight of the defendant Phillips, when soon after, unfortunately, he was drowned. Promptly upon the alarm of danger, the policeman Phillips. *587 went to the rescue of the drowning youth; so did all those in bathing, and they attempted by every means at their command to find his body. The accident was unfortunate, but taking that view of the evidence most favorable to the plaintiff, and regarding as established every essential ingredient of the cause of action that is permissible by the evidence, we think it fails to show any breach of duty owing by the defendants, or either of them, to the deceased, and hence, to establish facts sufficient in law to fix upon them liability to the plaintiff for the death of his intestate. In our opinion, there was no error in sustaining the motion for judgment as upon nonsuit, and the judgment is Affirmed.