Jacobson Snow, of Meridian, for appellant.
The facts as developed by the proof are insufficient to establish negligence, and there is no causal connection between any negligence attempted to be proven and the death of deceased.
22 A.L.R. 635; Burnside v. Gulf Ref. Co., 148 So. 219 , 164 Miss. 460 ; Berryhill v. Nichols, 158 So. 470 , 171 Miss. 769 ; Blass v. Virgin Pine Lbr. Co., 50 F.2d 29 ; Bartalot
v. Kinnare, 72 Ill. App. 52 ; Brotherton v. Manhattan B.I. Co., 48 Neb. 567 , 67 N.W. 479; C. G.R.R. Co. v. Coleman, 160 So. 277 , 172 Miss. 514 ; Crone v. City of El Cajon, 24 P.2d 848; 45 C.J. 701, 838; Daniels v. Jackson Infirmary, 163 So. 447 , 173 Miss. 832 ; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236 , 174 Miss. 392 ; Davis v. Pacific Power Co., 107 Cal. 563 , 40 P. 950; Feld v. C. G. Ry. Co., 121 So. 272 , 153 Miss. 601 ; Flora v. Bimini Water Co., 161 Cal. 495 , 119 P. 611; Ga. Cas. Co. v. Cotton Mills Product Co., 132 So. 73 , 159 Miss. 396 ; Hammontree v. Cobb Const. Co., 152 So. 279 , 168 Miss. 844 ; Hinds v. Moore, 87 So. 1, 124 Miss. 500 ; Hercules Powder Co v. Calcote, 138 So. 583 , 161 Miss. 860 ; I.C.R.R. v. Bloodsworth, 145 So. 333 , 166 Miss. 602 ; Jackson v. State, 159 So. 406 , 172 Miss. 145 ; J.C. Penney Co. v. Scarbrough, 186 So. 316 ; Kramer Service Co. v. Wilkins, 186 So. 625 ; Lucas v. Hammond, 116 So. 536 , 150 Miss. 369 ; Larkin v. Saltair Beach Co., 30 Utah 86 , 83 P. 686; Lyman v. Hall, 219 N.W. 902; Masonite Corp. v. Hill, 154 So. 295 , 170 Miss. 158 ; M.P. Transport Co. v. Beard, 176 So. 156 , 179 Miss. 764 ; Mut. Ben. H. Acc. Assn. v. Johnson, 186 So. 297; Maher v. Madison Sq. Garden Corp., 152 N.E. 403 , 242 N.Y. 506 ; N.O.
N.E.R.R. v. Holsomback, 151 So. 720 , 168 Miss. 493 ; Pietri v. L. N. Ry. Co., 119 So. 164 , 152 Miss. 185 ; Rom v. Huber, 93 N.J.L. 360 , 108 A. 361; Shuptrine v. Herron, 180 So. 620 , 182 Miss. 315 ; Salter v. Deweese-Gammill Lbr. Co., 102 So. 268, 137 Miss. 229 ; Shell Pet. Corp. v. Eagle Lbr. Sup. Co., 158 So. 331 , 171 Miss. 539 ; Swann v. Riverside Bathing Beach Co., 132 Kan. 31 , 294 P. 903; Scott v. City of Long Beach, 292 P. 664 ; Thompson v. I.C.R.R., 63 So. 185, 105 Miss. 636 ; Thomasson v. Agnes, 24 Miss. (2 Cushm.) 93; Thompson v. M.C.R.R. Co., 166 So. 353 , 175 Miss. 547 ; Teche Lines v. Bounds, 179 So. 747 , 182 Miss. 638 ; Tawney v. Ry. Co., 84 Kan. 354 , 114 P. 223; Vernes v. Roth, 202 Ill. App. 328 ; Waddle v. Sutherland, 126 So. 201 , 156 Miss. 540 ; Williams v. Lumpkin,.
It is the settled law in this jurisdiction that a party cannot be held liable for injury or death of another, or damage to the property of another, unless the party charged has been guilty of negligence and proof is adduced that his negligence was a proximate cause of the injury or damage. This rule was established by the court in its infancy as a court, and has been affirmed and reaffirmed until the present time; the court in many recent decisions having reaffirmed the doctrine in the strongest language.
Thomasson v. Agnes, 24 Miss. (2 Cushm.), 93; Waddle v. Sutherland, 126 So. 201 , 156 Miss. 540 ; Ga. Cas. Co. v. Cotton Mills Products Co., 132 So. 73 , 159 Miss. 396 ; Hammontree v. Cobb Const. Co., 152 So. 279 , 168 Miss. 844 .
Ordinary care of reasonably prudent person does not demand that person should provide for or anticipate unusual, improbable, or extraordinary occurrence.
Burnside v. Gulf Refining Co., 148 So. 219 , 166 Miss. 460 ; Jabron v. State, 159 So. 406 , 172 Miss. 135 ; Shuptrine v. Herron, 180 So. 620 , 182 Miss. 315 ; I.C.R.R. v. Bloodsworth, 145 So. 333 , 166 Miss. 602 ; Feld v. C. G. Ry. Co., 121 So. 272 , 153 Miss. 601 .
The position of appellees in the case at bar was, and we respectfully submit a careful consideration of the examination and cross-examination of the witnesses will clearly demonstrate, an effort to show that it was possible to have prevented the death of the deceased by appellant doing what was done in a different manner; that is, by paying specific attention to each individual in the pool instead of rendering a general supervision as was done. Appellees' entire effort appears to us to have been to look back over the every act of appellant, or its agents, on the afternoon of this unfortunate happening,
and to then point out how the occurrence might have been avoided. It was not shown, and very little effort was made to show, that the acts as performed by appellant and its agents, were, in fact, improper or negligent. Appellees were driven to a violation of the rule hereinabove announced because of the extreme diligence and vigilance of appellant in the operation of its pool. Appellees did not rely on and cannot rely on the doctrine of res ipsa loquitur to establish the case. That doctrine is not applicable to the facts.
Daniels v. Jackson Infirmary, 163 So. 447 , 173 Miss. 832 ; Y.
M.V.R.R. Co. v. Skaggs, 179 So. 274 , 181 Miss. 150 .
It is not sufficient under the law for a plaintiff to point out some act and show that such act constitutes negligence. The negligence pointed out, if any, must be shown to have caused the injury complained of. There must be causal connection between the act and the resulting injury.
Kramer Service Co. v. Wilkins, 186 So. 625 ; Pietri v. L. N. Ry. Co., 119 So. 164 , 152 Miss. 185 ; Thompson v. M.C.R. Co., 166 So. 353 , 175 Miss. 547 ; C. G.R.R. Co. v. Coleman, 160 So. 277 , 172 Miss. 514 ; J.C. Penney Co. v. Scarbrough, 186 So. 316 .
It is always competent to prove that a child, even of tender years, knew and understood the danger.
Hinds v. Moore, 87 So. 1, 124 Miss. 500 ; Salter v. Deweese-Gammill Lbr. Co., 102 So. 268, 137 Miss. 229 ; Lucas v. Hammond, 116 So. 536 , 150 Miss. 369 .
It was not negligence on the part of appellant to permit deceased to go into the large pool under the facts of the case.
Nor was it negligence not to have a rope strung across pool at or near the water's surface, separating deep water from the shallow water.
All guards employed were senior lifeguards certified as such by the Red Cross. These men had all had training and each had stood the examination before being
granted a certificate as a Red Cross lifeguard. They were skilled and proficient in the profession. They were expert swimmers and divers, the best swimmers and divers around the City of Meridian.
No one ever charged that Conrad Brown, the man stationed on the south side of the pool, ever left his post of duty, or that he ever did anything other than watch the surface of the pool and the bathers. He was present and available when it was found deceased's body was on the floor of the pool. Likewise, all of the proof shows Roy Malott was attentive to his duties and there is no intimation that he did anything other than watch the pool. We may observe that he was alert to the situation in that he changed posts with Flats Davis at regular intervals, and both he and Davis were there when the alarm was given. Appellees' attack is centered on Flats Davis, but we humbly submit the testimony shows this young man not only was on the alert, but that he did nothing for which he can justly be censured.
We humbly submit there is no rule so unreasonable as to charge Davis with negligence, if it had been proven he had taken his eyes off the pool for a few moments. Suppose it had been found that Davis required a drink of water. Can it be said that it would have been negligence for him to have walked up to the front of the bath house and obtained a drink of water? We submit that the rule is not so rigorous.
No causal connection has been shown between any act of appellant, or its agents, and the death of the deceased.
It is familiar law that the jury may not decide a case upon conjecture. Our court has so held in numerous recent decisions.
N.O. N.E.R.R. Co. v. Holsomback, 151 So. 720 , 168 Miss. 493 ; Kramer Service Co. v. Wilkins, 186 So. 625 ; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236 ; C. G. Ry. Co. v. Coleman, 160 So. 277 ; Berryhill v. Nichols, 158 So. 470 , 171 Miss. 769 ; Masonite Corp. v. Hill, 154 So. 295 , 170 Miss. 158 ; Williams v. Lumpkin,; Shell Petroleum Corp. v. Eagle Lbr.
Supply Co., 158 So. 331 , 171 Miss. 539 ; Burnside v. Gulf Refining Co., 148 So. 219 , 166 Miss. 460 ; Y. M.V. Co. v. Green, 147 So. 332, 167 Miss. 137 ; Hercules Powder Co. v. Calcote, 138 So. 583 , 161 Miss. 860 ; M.P. Transport Co. v. Beard, 176 So. 156 , 179 Miss. 764 ; Y. M.V. Ry. Co. v. Lamensdorf, 178 So. 80, 180 Miss. 426 ; Teche Lines v. Bounds, 179 So. 747 , 182 Miss. 638 ; Mut. Benefit Health Acc. Assn. v. Johnson, 186 So. 297.
The scintilla rule of evidence is not recognized in Mississippi. The law requires substantial proof, and this is so whether the plaintiff has produced all of the proof he can obtain or not.
Mut. Benefit Health Acc. Assn. v. Johnson, 186 So. 297; Blass v. Virgin Pine Lbr. Co., 50 F.2d 29 .
There are numerous cases from courts outside the State of Mississippi which we consider on all fours with the case at bar.
Crone v. City of El Cajon et al., 24 P.2d 848, 849; Swann v. Riverside Bathing Beach Co., 132 Kan. 31 , 294 P. 903; Lyman v. Hall, 219 N.W. 902; Mayer v. Madison Sq. Garden Corp., 242 N.Y. 502 , 152 N.E. 403 ; Scott v. City of Long Beach, 292 P. 664 .
We humbly and earnestly submit the requested peremptory instruction should have been granted, that no negligence was shown on the part of appellant, or its servants, and that there was no causal connection shown between any act of appellant, or its agents, and the death of the deceased.
The overwhelming proof in this case was with the appellant, and for that reason the verdict of the jury should have been set aside. A judgment in favor of appellees should never have been entered on the proof adduced.
S.H. Kress Co. v. Sharp, 126 So. 650 , 156 Miss. 293 ; Teche Lines, Inc., v. Mason, 144 So. 383; Miss. Central R.R. Co. v. Smith, 154 So. 534, 173 Miss. 507 ; M.; Fore v. A.
V. Ry. Co., 39 So. 493, 87 Miss. 211 .
The amount of damages awarded is too great and evinces passion, bias, and prejudice on the part of the jury.
Moser v. Hand, 81 F.2d 522 ; Avara v. Collins, 157 So. 695 , 171 Miss. 636 ; Ignaszak v. McCroy Ref. Co. (Mich.), 190 N.W. 756; Hornbuckle v. McCarty (Mo.), 243 S.W. 327 ; Davoren v. Kansas City (Mo.), 273 S.W. 401 ; Brew v. Davidson (N.J.), 128 A. 613; Ward v. Public Service Co. (N.J.), 152 A. 82; Remirez v. C.B. O. Ry., 219 N.W. 1; Genatt v. Bentz, 133 A. 75; Interurban Ry. Co. v. Traim, 233 S.W. 816; Davis v. Gillin (Ark.), 66 S.W.2d 1057 ; Allen v. Des Moines Ry. Co. (Iowa), 253 N.W. 143 ; Sakos v. Byers, 168 A. 222; Olszewska v. Windsor, Inc., 156 A. 16; Morel v. Lee, 22 S.W.2d 1110 ; Little Rock v. Barker, 33 Ark. 350 , 34 Am. Rep. 44; Tax v. Oakland Cons. St. R. Co., 62 A.S.R. 216; Okla. Cement Co. v. Dow, 224 P. 168; Devine v. Chicago City R. Co., 153 Ill. App. 382 ; Vicksburg v. McLain, 6 So. 774; Rice v. Crescent City R. Co., 24 So. 791; Ortotono v. Morgans L. T.R. S.S. Co., 33 So. 914; Sandmaker v. Y. M.V.R. Co., 30 So. 285; Hively v. Webster, 91 N.W. 1041.
Gilbert Cameron, E.T. Strange, and Edwin A. Dunn, all of Meridian, for appellees.
It was contended in the lower court by the appellant and chiefly relied upon in this court that the appellant was entitled to a directed verdict. The appellees contended that the case presented questions of disputed fact which were purely jury questions and that the
cause was properly submitted to a jury under proper instructions.
The sole question involved in this case for the decision of the jury was whether or not the appellant, its servants and agents, exercised ordinary care for the protection of their patrons, including the deceased, while they were using the pool in question, and if not, did the same proximately cause or contribute to the death of this child?
It is the contention of the appellee that this record simply bristles with testimony showing negligence of the grossest character.
Maxie et al. v. Laurel General Hospital, 30 Miss. 246 .
The facts in the case now before the court were amply sufficient to justify the jury in concluding that this child was drowned in seven or eight feet of water as a direct and proximate result of the failure of the guards to exercise reasonable care for his safety while in the pool and in the deep water.
The appellee's position in this lawsuit was that the testimony was more than sufficient to show that the negligence of the appellant as claimed in the declaration and as shown by the proof proximately occasioned the death of the deceased and rendered the appellant liable for same. It is the judgment of this appellee that this record clearly demonstrates liability on the part of the appellant and that this record presents a question of fact for the jury and the case was properly presented to the jury for its decision.
We do not think it necessary to cite an avalanche of cases as has been done by the appellant in its brief. The issue is simple, and the testimony sustains the contention of the appellees as to the negligence of the appellant proximately resulting in the death of the deceased.
It is argued that the verdict of the jury is excessive. A sufficient answer to this ground in motion for new trial, though not assigned in this court, is the case of Gulf Refining Company v. Miller, 121 So. 482 , where
a verdict of $11,000 was affirmed by this court as an award for the instantaneous death of a child 13 1/2 years of age. The child in this case was shown to have been as precocious a child as was the one involved in the Miller case. This child had an earning capacity as did the child in the Gulf Refining case, and this court permitted a verdict in the above amount as damage for the death of that child.
This case involving as it does a ten year old child, it may not be amiss to call to the court's attention a few cases from other jurisdictions touching the care required where children are involved, namely: "Common experience tells that a child may be too young and immature to observe the care necessary to his own preservation, and therefore when a person comes in contact with such a child, in its youth and immaturity, he is chargeable with knowledge of the fact that he cannot therefore presume that the child will do what is necessary to avoid impeding danger."
Holmes v. Mo. Pac., 105 S.W. 621; Swann v. Riverside Bathing Beach Co., 294 P. 902; Ala. By-Products Corp. v. Cosby, 115 So. 31 ; Camden Interstate Railroad Co. v. Broome, 139 Fed. 595, 71 C.C.A. 651; Brande v. May Mercantile Co., 121 S.W. 326; Potera v. City of Brookhaven, 95 Miss. 774 , 49 So. 617; So. Ry. Co. v. Floyd, 99 Miss. 519 ; Fuller v. I.C. Ry. Co., 100 Miss. 705 .
The rule of reasonable care is applied with a view to particular circumstances of age.
Duke v. Mitchell, 153 Miss. 880 ; St. Louis R.R. Co. v. Jefferies, 276 Fed. 73; Carson v. Leathers, 57 Miss. 650 ; Gulf R.R. Co. v. Broome, 120 Miss. 632 ; I.C. Ry. Co. v. Fuller, 106 Miss. 65 ; Miss. Oil Co. v. Smith, 95 Miss. 528 ; St. Louis R.R. Co. v. Moore, 101 Miss. 768 ; Armstrong v. Avair, 247 S.W. 848 .
Argued orally by E.L. Snow, for appellant, and by Charles S. Cameron, for appellees.