Opinion
Argued June 13, 1940
Decided July 24, 1940
Appeal from the Supreme Court, Appellate Division, Second Department, RIEGELMANN, J.
Abraham I. Nelson for appellant. B.G. Barton for St. George Swimming Club, Inc., respondent.
The accident happened when plaintiff, a paying customer of the defendant swimming club, dove into a part of the pool especially maintained by the defendant for diving, without knowledge of the presence of a swimmer underneath the surface of the water. At the end of the dive she struck her head upon the swimmer and received the injuries of which she complains. Evidence that the swimmer was in that part of the pool reserved for divers with the consent of defendant's lifeguard and admissions of defendant made upon examination before trial that the uniform custom and practice of the defendant in the maintenance of the pool and the protection of its diving patrons were to maintain two guards to keep that part of the pool free from swimmers when patrons were diving were erroneously excluded. The complaint was dismissed at the close of plaintiff's case. The evidence together with inferences to be reasonably drawn therefrom was sufficient to take the case to the jury upon the question of the negligence of both defendants and of freedom from contributory negligence on the part of the plaintiff. ( Bensen v. Kristeller, 277 N.Y. 561. ) The risk of injury from diving under the conditions obtaining at the place and time of the accident was not, as matter of law, assumed by the plaintiff. ( Allon v. Park Central Hotel Co., 272 N.Y. 631.)
The judgment should be reversed and a new trial granted, with costs to abide the event.
LOUGHRAN, FINCH, RIPPEY, SEARS, LEWIS and CONWAY, JJ., concur; LEHMAN, Ch. J., dissents.
Judgment reversed, etc.