Druding v. Philadelphia , 374 Pa. 202 ( 1953 )

Opinion by

Mr. Justice Bell,

Plaintiff sued in trespass for personal injuries; recovered a verdict in the amount of $12,500; the defendant’s motion for judgment n.o.v. was dismissed by the Court en banc; judgment was entered on the verdict in favor of plaintiff, and from such judgment defendant appeals.

On the evening of July 24, 1951, at approximately 8 p.m., plaintiff, aged 42, went to the Greenwich Recreation Center at 3rd and Shunk Streets, Philadelphia, where the City maintained and operated a public swimming pool. It was a very hot night and Druding asked the attendant whether he could take a swim. After the attendant told him that he could, plaintiff checked his valuables and then took a cold shower for about 5 minutes. The pool was 80 feet long and 30 feet wide. Plaintiff, according to his own testimony — and of course on a question of judgment n.o.v. he must be given the benefit of all testimony favorable to him and all reasonable inferences therefrom: McDonald v. Ferrebee, 366 Pa. 543, 79 A. 2d 232—came out of the shower room and seeing one end of the pool marked “Deep End” walked 8 or 10 feet until he reached a point approximately 20 feet from the deep end of the pool. The water was a greenish color — his witnesses said “dark greenish color, just ordinary city water” — and there were “a lot of fellows in there, jumping in and jumping out” “and playing tag in the water.” Plaintiff looked before he dove “to see that no one was in front of me” and hit his head and broke his neck on the bottom of the pool. He testified that the water at that point was about 3y2 feet below the edge of the pool and was only 2 feet deep. The water came up to the knee or below the knee. The lifeguard was draining the pool that evening, although about 65 to 100 people were still using it. No sign or warning was given to persons that the pool was being drained. Plaintiff had not been in a swimming pool for approximately 26 years.

Was plaintiff guilty of contributory negligence as a matter of law? We have regretfully come to the conclusion that he was.

Plaintiff was an invitee at the swimming pool and the City owed him the duty of reasonable care. However, as Mr. Justice Jones said in McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 570, 55 A. 2d 399: “There is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious.”

“No person is required to take extraordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness. . . . ‘Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent persons generally’ Jefferson v. Y.M.C.A., 354 Pa. 563, 567, 47 A. 2d 653.

“One who heedlessly walks into a place which he knows or should know may be dangerous takes the chance of the result and must abide by the consequences: Jones v. Counties Gas & Elec. Co., 289 Pa. 128”: McCann v. Philadelphia Fairfax Corporation, 344 Pa. 636, 640, 26 A. 2d 540. See to the same effect: Miller v. Exeter Borough, 366 Pa. 336, 340, 77 A. 2d 395.

“What this court stated in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A. 2d 754, applies to the instant case: ‘. . . When an individual can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness . . . The duty of availing oneself of one’s senses, for self-protection can seldom be breached with physical impunity and never with legal sanction . . . The rule that a victim cannot recover damages for injuries sustained by him if he could have avoided the injury by the exercise of ordinary care bars this plaintiff’s recovery:’ ” Bartek v. Grossman, 356 Pa. 522, 525, 52 A. 2d 209.

“A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed”: Boock v. Acme Markets, Inc., 347 Pa. 501, 503, 32 A. 2d 759; Rogers v. Max Azen, Inc., 340 Pa. 328, 16 A. 2d 529.

In the instant case plaintiff saw or should have seen that the water was more than 3 feet below the top of the pool; that boys were running and playing tag in the pool with water only up to their ankles; and that at the place where plaintiff dived, people were standing in the pool with the water around or below their knees. Where a person dives into a pool at a point where the water is only up to a bather’s knees and fails to look or if he looked fails to notice and avoid such an obvious danger he is guilty of contributory negligence as a matter of law.

In the light of plaintiff’s contributory negligence, it is unnecessary for us to decide whether there was sufficient evidence of defendant’s negligence to take the case to the jury.

The judgment is reversed and judgment n.o.v. is here entered in favor of the defendant.