Opinion
279 A.D. 763 108 N.Y.S.2d 903 FRANCES M. WATTS, as Administratrix of the Estate of STANLEY WATTS, Deceased, Appellant, v. MITCHELL BROS. REALTY CORPORATION, Respondent. Supreme Court of New York, Second Department. December 17, 1951
Decedent, twenty-one years old, was a paying patron of defendant's swimming pool. The evidence showed that decedent dived from a raft in the center of the pool into the swimming area and was not seen again until his body was recovered some five or six hours later. In this action to recover damages for the wrongful death, plaintiff argues that defendant was negligent in that (1) the lifeguard who was stationed about 100 to 150 feet from the place where decedent dived into the water was doing acrobatics on the beach for the entertainment of some friends and was thus inattentive to his duties; whereas, had the lifeguard been performing his duty, he would have observed the happening in time to save decedent; (2) about fifteen or twenty minutes after decedent was seen to dive into the water, the companion who accompanied decedent to the pool inquired of an employee of defendant, whose duty was to check bathers' clothes, whether decedent's clothes were still in the basket into which they had been placed, and the employee stated that 'there were no fellow's clothes there', whereas in fact decedent's clothes were there. The argument is that, had decedent's friend been informed at the time he made inquiry that decedent's clothes were still in the basket, he would have conveyed alarm to the lifeguard and there would have been time to have located decedent's body and to have resuscitated him. After the jury disagreed, the trial court granted defendant's motion for a directed verdict made at the close of the case, on which decision had been reserved, on the ground that the evidence was legally insufficient to support a verdict for plaintiff. Order granting defendant's motion for a directed verdict, and judgment entered thereon, affirmed, without costs. ( Maher v. Madison Sq. Garden Corp., 242 N.Y. 506.)
Carswell, Johnston, Adel and MacCrate, JJ., concur; Nolan, P. J., dissents and votes to reverse the order and to deny the motion for a directed verdict, on the ground that the proof adduced presented an issue of fact for determination by the jury.