Cardinali v. City of New York , 1 A.D.2d 1019 ( 1956 )

In an action to recover damages for personal injuries sustained when plaintiff, a patron at a swimming pool operated by defendant, dove into water three and one-half feet deep and struck his head on the bottom of the pool, the defendant appeals from a judgment in plaintiff’s favor, entered on the verdict of a jury. Judgment reversed and a new trial granted, with costs to appellant to abide the event. The evidence discloses that the water in the pool was maintained at a depth of about three and one-half feet at the perimeter of the pool and that the depth gradually increased to about four and one-half feet at the center. The pool was customarily used by both adults and children and was not intended to be used for diving. Respondent, a stranger to the pool, and a mature adult, made no inquiry or test, before diving, to ascertain the depth of the water. In our opinion, the finding implicit in the jury’s verdict, that respondent was free from contributory negligence, is against the weight of the evidence. Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.