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CUMMINGS v. NAZARETH BOROUGH (05/23/68)

decided: May 23, 1968.

CUMMINGS
v.
NAZARETH BOROUGH, APPELLANT



Appeal from judgments of Court of Common Pleas of Northampton County, Oct. T., 1964, No. 28, in case of Darrel L. Cummings, a minor, by Dorrace Cummings Woodward, his guardian, and Dorrace Cummings Woodward, individually v. Borough of Nazareth, Fred Hahn, Frederick Knecht, Jr. et al.

COUNSEL

Tom P. Monteverde, with him E. Jerome Brose, John C. Hambrook, and Brose, Poswistilo & LaBarr, and Fox, Oldt & Hambrook, and Schnader, Harrison, Segal & Lewis, for appellants.

Norman Seidel, with him Gus Milides and Herbert Toff, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Roberts concurs in the result. Mr. Justice Jones and Mr. Justice Cohen dissent. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Musmanno

[ 430 Pa. Page 257]

This case has already been before this Court and is reported in 427 Pa. 14. It is not necessary thus to repeat what was there said. It is enough to outline on the blackboard the salient facts of the litigation so that we can proceed to discuss the issues raised in this present appeal.

The lawsuit arose out of an accident which occurred on July 30, 1963, when Darrel L. Cummings, 16 1/2 years of age, dived into a swimming pool owned and operated by the Borough of Nazareth, sustaining such serious injuries from that diving that he has been rendered a helpless cripple for life. In the ensuing lawsuit the jury returned a verdict for $150,000 in his favor and $65,000 in the name of his guardian. The defendant filed motions for judgment n.o.v. and a new trial. The Court of Common Pleas of Northampton County entered judgment n.o.v., stating that the plaintiff had not proved actionable negligence on the part of the defendant and that the plaintiff had assumed the risk of diving into the swimming pool.

The plaintiff appealed and this Court reversed, by a vote of five to one. Mr. Chief Justice Bell filed a dissenting opinion. In view of the fact that the court below, in entering judgment n.o.v., deemed ruling on the motion for a new trial superfluous, we remanded the case to the trial court with instructions to dispose of the motion for a new trial still pending before it, adding that if the motion was refused, the court should enter judgments on the verdicts. A court en banc considered the motion for a new trial, and two of the three judges composing the court refused the motion for a new trial and judgments were entered on the verdicts.

[ 430 Pa. Page 258]

One of the judges of the court en banc, the trial judge, filed a dissenting opinion. The defendant has now appealed to this Court, urging that the order of the lower court be reversed, advancing argument that the verdict was against the weight of the evidence, that the evidence did not establish that the plaintiff's injuries were caused by striking his head against the bottom of the pool, and that during the trial plaintiff's counsel referred to evidence which had been excluded by the trial judge.

It was the position of the plaintiff at the trial that the accident which disabled him was due to the failure of the defendant to place the diving board from which he dived over a body of water of sufficient depth. Had there been an adequate depth at this point the momentum of the plaintiff's dive would not have taken him to the bottom of the pool. The jury found by its verdict that the defendant had failed in its duty to exercise the care it owed the plaintiff in building and maintaining the pool. This Court concluded that the jury was justified in reaching that conclusion. Thus that question is settled definitively by our decision and may not be relitigated.

This Court, in passing on the defendant's motion for judgment n.o.v., thoroughly considered the evidence as to how the plaintiff sustained the injuries which were the basis of his lawsuit, and we found and so declared in our decision that Darrel Cummings suffered a broken back as the result of his head striking the bottom of the swimming pool. The defendant, in spite of our conclusive finding on the subject, seeks to reargue the point, insisting that the plaintiff came to grief because, as he entered the water, his body collided with that of a fellow-swimmer, John Werkheiser, who was treading water at that point.

In our previous decision we referred to the testimony of Dr. Hugo C. J. Verbruggen who testified at

[ 430 Pa. Page 259]

    the trial that it was "impossible" for Darrel to have sustained his grave injuries by contact with another swimmer. Another medical witness, Dr. Rolf Johnson, testified that "the patient had a severe blow on the head causing the head to be flexed forward violently." He explained further that it was "highly unlikely" that Darrel's injuries were caused by any collision with another swimmer because "the other swimmer has a soft body and there will be a certain amount of give, and the force required to give a fracture dislocation of the neck, you have to have a sudden stop, an impact. It would be like an automobile accident."

When John Werkheiser, the young man who had been treading water at the time Darrel dived, was asked: "The fact that Darrel Cummings brushed against you, did it in any way disturb your treading the water?" he replied: "No, it didn't harm me . . . I felt it, but there was no pain, no discomfort."

The plaintiff himself testified: "Then after brushing against John and going down further, all of a sudden it felt like a sledge hammer hit me and I was out . . . after brushing Johnny, I remember just a little bit after that still going down in the water. Then all of a sudden, pow: Just like that, I was out."

The trial judge admitted that there was evidence to support the proposition that the plaintiff's head hit the bottom of the pool. He charged the jury: "the plaintiffs' theory of the case as I understand it is that Darrel struck his head on the bottom of the pool . . . From it you might infer that he had struck the bottom . . . Well, these and other questions of fact, members of the jury, are solely for you."

Obviously, if there had been no evidence that the plaintiff's head had struck the bottom of the pool, the trial judge would have excluded that concept from the jury's consideration. Not only that, the court approved

[ 430 Pa. Page 260]

    the point for charge submitted by the defendant, namely: "I. If you find that plaintiff, Darrel Cummings, did not strike the bottom of the pool, your verdict must be for the defendant." and added: "Now, that is a proper point, and I affirm it because the entire presentation here is predicated, I believe, on the alleged negligence of the borough to maintain a proper depth."

Obviously again, if there had been no evidence that the plaintiff's head had struck the bottom of the pool, the trial court would undoubtedly have informed the jury of the absence of such evidence.

In addition to the objective evidence presented that the plaintiff's injuries resulted from his contact with the floor of the pool, the physics, logic and the law of cause and effect confirm that conclusion. It was admitted that John Werkheiser was not injured in the slightest. It will be recalled that John was treading water at the time of Darrel's dive. While treading water, which has been described as "riding a bicycle", the swimmer's whole head is above water and his shoulders would also be either above water or so close to the surface that his head and shoulders would present a resisting solid object to any body falling on it from above. In performing from the diving board, Darrel leaped into the air and then plunged downward. Since the diving board was about three and a half feet above the water and Darrel's leap took him up at least a foot or two, his body would have to travel some five feet or more before it contacted the upper part of John's body.

Considering the momentum Darrel's body would have acquired from the spring, plus the fall, it would be inevitable that John would have suffered some injury from the impact, if Darrel had landed on him. At the very least John would have been stunned, if only momentarily. But he was in no way affected by the blow supposed to have been delivered, under the

[ 430 Pa. Page 261]

    defendant's theory, by Darrel's body striking John's body. If the force of the impact of the collision of the two bodies was such that it broke Darrel's back, certainly it would have been powerful enough to have done some damage to John. It must be repeated, however, that John was in no way disturbed. Although the trauma suffered by Darrel was such that it prostrated him on the swimming pool floor, the impact supposedly felt by John was so insignificant that when Darrel did not surface, John went down to search for Darrel on the bottom of the pool. After locating him, he helped him to a ladder and there, with the cooperation of a lifesaver, he participated in the job of lifting Darrel to the open-air apron of the pool.

The defendant contends that the plaintiff entered the water with his head unprotected by hands above his head. In this respect it quotes what plaintiff's counsel indicated at the pre-trial conference, but the fact remains that, at the trial, John Werkheiser testified, as the defendant quotes in its brief, that Darrel's dive was a "sloppy swan dive," defining such a dive: "You go into the air, your arms are ...


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