Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DESIMONE v. PHILADELPHIA (01/03/55)

January 3, 1955

DESIMONE
v.
PHILADELPHIA, APPELLANT.



Appeals, Nos. 303 and 304, Jan. T., 1954, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1949, No. 3583, in case of Frank DeSimone et ux., Admrs., Estate of Anna Jean DeSimone, deceased v. City of Philadelphia. Judgment affirmed.

COUNSEL

I. Jerome Stern, Assistant City Solicitor, with him Jerome J. Shestack, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for appellant.

David Berger, with him Leon H. Kline, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 380 Pa. Page 139]

OPINION BY MR. JUSTICE MUSMANNO

The City of Philadelphia maintained in 1949 at 12th and Reed Streets a swimming pool which was 80 feet long, 40 feet wide and ranged from a wading shallowness at one end to a depth of over 5 feet at the other end. On Tuesdays, Thursdays and Saturdays the pool was reserved for boys; on Mondays, Wednesdays and Fridays, girls had it for their exclusive use. A lifeguard attended on the boys' days but not on girls' days.

To this pool on Wednesday, June 2., 1949, came some 50 girls for relief from the heat of a glowing summer's day and for the general enjoyment and fun that people, particularly the young, find in the popular sport of swimming. Among the gay children in the water at about 1 o'clock of the afternoon was Anna Jean DeSimone, 15 years of age, accompanied by her sister, Alice DeSimone, 10 years of age. While the younger child waded at the shallow end, Anna Jean swam in the deeper area of the basin. Another swimmer, in the deeper area of the basin. Another swimmer, Dolores Capaldi, 14 years old, was playing in the the opposite end of the pool. Climbing a ladder to the pavement, she ran to the scene of the alarm and there saw Anna Jean Helplessly floating and obviously in serious difficulty. She dived toward her stricken companion while another girl, Anna May Hoffman, joined in the attempted rescue. Between them they bore the drowning child to the edge of the pool and on to the cement apron. As the rescued girl lay on the pavement moans rose from her lips, her eyelids fluttered and bubbles escaped for her mouth and nose.

[ 380 Pa. Page 140]

Having had, in years past, some slight instruction at school in artificial respiration, Dolores attempted to apply the vague remnants of her knowledge to the task of resuscitating the prostrate Anna Jean. Anna May, equally an amateur, assisted Dolores in this heroic effort. By turns they pressed the inert body, lifted the arms and blunderingly sought to renew the breathing which had now ceased. A third person, referred to only as Mario, also gave a hand. When Anna Jean was finally taken to the hospital, arriving there at 2:45 P.M., she was pronounced dead.

The parents, as administrators of the estate of the deceased girl, and in their own rights, brought suit against the City of Philadelphia and, at the ensuing trial, the jury returned a verdict in their favor in the sum of $3500 in the Wrongful Death Action and $15,000 in the Survival Action.

The defendant City moved for a new trial and for judgment n.o.v. Both motions were refused and this appeal followed. Counsel for the defendant urges a reversal of the judgments on the representations that the plaintiffs failed to prove that the City was negligent and that the City, acting in furtherance of the governmental purposes of the City, is immune from tort liability.

In the very recent case of Hill v. Allentown Housing Authority, 373 Pa. 92, this Court said: "In Honaman v. Philadelphia, 322 Pa., 535, 185 A. 750, it was held that in maintaining parks and playgrounds a city acts in its proprietary capacity and is therefore liable for failure to exercise reasonable care; there was cited with approval the statement from 2 Dillon, Mun. Corp.3rd ed. ยง 985 that ' - municipal corporations, are ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.