Appeal, No. 32, Jan. T., 1963, from judgment of Court of Common Pleas of Bucks County, Sept. T., 1959, No. 59, in case of Joseph Francis Cantwell v. Township of Bristol. Judgment affirmed.
Tyson W. Coughlin, with him Hamilton C. Connor, Jr., Robert Baker, and Ballard, Spahr, Andrews & Ingersoll, for appellant.
George T. Kelton, with him Begley, Carlin, Mandio, Kelton & Popkin, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
Joseph Francis Cantwell, 23 years of age, healthy, strong, married, gainfully employed, and with a horizon of life's happiness unmarred by a single cloud, went swimming in the summer of 1958 in the Lagenfelder Lake in Bristol Township, Bristol County. This aquatic excursion ended in his being paralyzed for life.
As he dived into the water, his head struck a rigid object of unknown character and, in consequence, he suffered what is referred to in popular language as a "broken neck." The doctor who examined him testified that Cantwell suffered a dislocation of the sixth vertebra, causing a complete paralysis below that vertebra.
Cantwell brought suit against the Township of Bristol, averring that the township had been negligent in its maintenance of the recreational lake which measured about 700 feet by 250 feet. At the trial, the court entered a compulsory non-suit.
There was evidence that the township, in preparing the lake for the swimming public, had drained it, cleared it of obstructions and then covered the bottom with a six-inch layer of sand. When water refilled the lake, loiterers and strollers began to toss, roll, throw, push, and otherwise introduce into the lake, truck tires, steel drums, planks and other foreign objects which could impede swimming and endanger the safety of the swimmers.The township could not help but know of this malicious mischief.
For reasons not made clear at the trial the township removed strange objects from the south end of the lake but ignored conditions in the northern part of the lake. Fate would have it that Cantwell was to swim in these northern waters which had become a submarine junk yard. He had arrived at the lake on the evening of July 15, ...