I dissent from the majority of the court.
There were five doctors who testified in this case. Three of them said deceased Collins did not die from drowning and one that he did, and the fifth expressed no opinion on that point, but granting he was drowned (which is very questionable), was it through any fault or negligence of defendant? The pool in which deceased met his death was furnished with the very best of equipment. He was a good swimmer and familiar with the pool and had been in it many times before. The over head rings, from which he fell or released himself into the water, were standard equipment placed for the use of swimmers. After he dropped from the ring into the water, with some effort he managed to reach the north *Page 150 side of the pool where he was assisted by his companions out of the water and placed on the sidewalk. His companions were Leonard Warmington, 15 years old, and Charles Robeda, 14, who testified they lifted him out of the water and stated that he looked like he was choking and that he was muttering something at the time. Vernon Smith, who was present at that time, was asked what he did and he said he administered artificial respiration by laying deceased prone on his stomach and placing his head on his hand so that his mouth was free and open and pressed him on his back to force the water out. He said he sent Leonard and Charles after the lifeguard. These boys say they did not find or see the lifeguard, but the evidence is that Tom Taylor (who was not on duty at the time) was at the lunch counter approximately ninety feet from where deceased was, and he testified one of the boys that was with Hugh Collins (Warmington and Robeda) "ran up and says, `Where is Kelly?' — He said, `There is an accident here.'" Taylor said he ran immediately to where the Collins boy was, that "Vernon Smith had him out of the pool, out of the water," and was giving him respiration at the time. Taylor said, "Then I gave him respiration and told Vernon Smith to run and get Kelly, and Kelly came and — within just a second; I don't know how quick . . . and Kelly gave him artificial respiration while I summoned the pulmotor squad immediately, and someone had phoned them before that." Steve Kelly, when he first heard of the accident, was at the west end of the pool at the shallow pool used for children, but the main pool including the rings where Collins was, was clearly within his vision. While there he heard someone holler "Lifeguard" and as he turned around, Vernon Smith was calling his name and running toward him; that he was about 110 feet from *Page 151 where Collins was; that he went immediately and "found Hugh Collins was lying prone on the sidewalk, with his face on his arm, on his left arm, and his right arm to one side, and Tom Taylor was giving him artificial respiration." This witness says Collins' jaws were in a rigid condition and that he put his fingers between his teeth and relieved that condition. He further testified:
". . . As I gave him respiration, with each pressure he would breathe with me, and it was only a matter of a very few pressures that he groaned audibly and attempted to raise himself up on an elbow, on the elbow that was under his head, and I felt that he was breathing and started to turn him over and treat for shock when he vomited, regurgitated, and then he seemed to be choked up after doing that and I gave him further respiration till that was clear, and then he was breathing again and groaning again and I started to turn him over when he suddenly went limp or collapsed. Then I started respiration again and continued that until such time as the pulmotor arrived."
This witness had been a lifeguard for a number of years in both California and Arizona and his qualifications are not questioned. The testimony shows that skilled and experienced lifeguards were on duty on the 10th day of July, and that they did everything possible to help Collins, and that what they did was the right thing to do.
The evidence of plaintiff's witnesses does not establish a conflict with that of the defendant as to the presence of the lifeguards and the prompt and efficient assistance given deceased.
Charles Robeda, when asked if the guard was around the pool, evasively answered: "I didn't see him. I guess he was around there, but he wasn't where I was." This witness corroborates Tom Taylor, who said Vernon Smith went to look for a guard *Page 152 and "found him." Leonard Warmington whom Vernon Smith also sent to look for a guard, testified when he returned a lifeguard was "already there." Virginia Swank said she did not see any lifeguard on the premises, but explained on cross-examination she meant she did not see anyone with the markings of a lifeguard on his clothes. It was explained by the defendant's manager that lifeguards purposely did not wear distinguished bathing suits to avoid too much attention by some of the women patrons of the pool.
At the close of the case, the evidence being as I have stated, the court instructed the jury to return a verdict for the defendant, and it seems to me the action of the court should be sustained.