Appeal, No. 136, Jan. T., 1953, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1951, No. 1019, in case of Thomas Druding v. City of Philadelphia. Judgment reversed; reargument refused June 26, 1953.
I. Jerome Stern, Assistant City Solicitor, with him James Francis Ryan, Assistant City Solicitor, and Abraham L. Freedman, City Solicitor, for appellant.
Leonard Orloff, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
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 3 1/2 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 has 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 ...