Bertalot v. Kinnare

Mr. Justice Sears delivered the opinion oe the Court. On July 23, 1892, plaintiff in error was the owner of and conducted the business of a .swimming school or natatorium. On the evening of that day Armand J. Bachand, a boy of about fifteen years of age, visited the natatorium to bathe, and paid his admission therefor, He was last seen alive about 9:30 o’clock, in the water at the shallow end of the tank, and some ten or fifteen minutes later was discovered unconscious and perhaps already lifeless, at the bottom of the pool. All efforts to resuscitate him were without avail. For his death, and alleging negligence on the part of plaintiff in error as the proximate cause thereof, the defendant in error brought this suit, and recovered verdict and judgment therein. The several counts of the declaration allege as the negligence complained of, first, failure of attendants to watch intestate while bathing; second, lack of railing at the north end of tank; third, permitting the room in which the tank was located to become over-crowded; fourth, failure to provide instructors to watch intestate, whereby failure to rescue resulted. It is doubtless the law that the proprietor of such an institution would be liable for injury to a patron, if such injury resulted from lack of ordinary care in providing for his safety, and without fault of the patron; but it is as surely not the law that such proprietor is in any sense an insurer of the safety of his patrons, nor would the death of a patron within his premises cast upon the proprietor the burden of excusing himself from any presumption of negligence. Brotherton v. Manhattan B. I. Co., 48 Neb. 567. It was incumbent upon defendant in error, as plaintiff in the trial court, to sustain his declaration with evidence, and to establish the averments of some one of its counts. The question here presented is simply whether the record shows evidence which would warrant the jury in finding that there was such lack of ordinary care as is alleged, and that it was the proximate cause of the death of the intestate. Defendant in error presented no evidence to show just how the lad came to his death, except that some ten or fifteen minutes after he was seen alive and in a place of safety, he was found unconscious, and, it may be, already dead, at the bottom of the swimming tank. It is true that Carr, a witness for defendant in error, did testify in direct that he saw the lad “ treading water,” and a few moments later he had disappeared, and was shortly after found at the bottom of the tank. But this testimony, which would have constituted a showing of the manner of the accident, was set at naught by the later statement of the same witness, when he said, “I don’t know that the boy I saw treading water was the boy found dead in the pool. I did not see his face.” The proximate cause of the accident, therefore, was not discoverable from the evidence presented by defendant in error. Plaintiff in error on the other hand, did present evidence, viz., the testimony of two witnesses, to the effect that the boy was pushed into the pool at the south end by other patrons of the place, and then as he fell into the water, was struck by a diver (also a patron), who plunged down from swinging rings overhead. The jury by their general verdict and their special findings discredited this testimony and found specifically that the lad did not meet his death in the. manner described .by these witnesses; But verdicts, whether general or special, have no value when supported by no evidence. And' so it is on the record here. A verdict for plaintiff in error would have been warranted had the jury given credit to the testimony of his witnesses. The verdict for defendant in error was bad, because unsupported by any evidence whatever as to how the intestate happened to meet the disaster which resulted in his death, and what negligence, if any there was, contributed thereto, or was the proximate cause thereof. The verdicts, general and special, could have been based upon nothing but guess-work. Whether the jury guessed that the accident was caused by a slippery floor (not averred but proved), lack of railing (not averred as to the south end), a crowded room, or by simply getting beyond depth in efforts to learn to swim, and negligent omission by attendants to effect a rescue, is immaterial. Certain it is that from the evidence it can not be found that any one of these things had aught to do with the accident, and it is certain, too, that the evidence warrants no conclusion of any negligence after the boy was found in the water; and if negligence was assumed after the discovery of the body, it could not be determined that such negligence had any bearing upon the lad’s death in the absence of any evidence as to how long he had been beneath the water before discovery. If either does it profit to inquire as to any negligence claimed to have been showrn on the part of plaintiff in error or his attendants before the discovery of the body, for it can not be determined from this record whether such negligence, if any there was, caused the result of the boy’s death. In Brotherton v. Manhattan B. I. Co., supra, the court say: “ How Brotherton got back into the deep water and what occurred there is not revealed by any evidence. It is not sufficient to establish a case for the plaintiff that negligence should be proved on the part of the defendant, but it must also appear that the negligence proved was the proximate cause' of' the injury.” This is a statement of a familiar proposition of law, but it bears particularly upon the case under consideration by reason of similarity of facts. Because of the insufficiency of the evidence to sustain the declaration, the verdict should have been set aside and a new trial granted. Judgment reversed and cause remanded.