326

did not constitute actionable negligence, The court said: "The springboard
and the water beneath and about it constituted the diving and swimming accommo—
dations. It was in law the duty of the defendant to exercise proper care,
precaution and diligence to provide and maintain a reasonably suitable enti safe
springboard and water of reasonably suitable and safe depth under and about the
springboard, free from obstructions or other dangers to comfort and safety in
the ordinary and customary use of such a diving and swimming place. If the
water was in fact of such a depth as to make diving from the springboard into
the water beneath, in the usual, ordinary and customary manner, unsafe in the
particulars alleged and no appropriate notice or warning was given of the un-
safe or unsuited condition of the diving place and the decedent was, because of
such unsafe or unsuited accommodations being negligently furnished, injured
while properly using the accommodations in a customary and appropriate manner
in diving from the springboard in his customary way, without fault on his part ,
a cause of action for compensatory dameges exists under the statute in favor
of the plaintiff, if the decedent could have maintained an action for the same
injury had his death not resulted therefrom... . Where a party maintains
a bathhouse or a diving or swimming place for the use of the public for hire
and negligently permits any portion of the same or its appurtenances, whether
in the house, or the depth of the water, or in the condition of the botoom, or
in things thereon, to be in an unsafe condition for its use in the manner in
which it is apparently designed to be used, a duty imposed by law is thereby
violated; and if an injury to another proximately results from a proper use of
the same, without contributory negligence, a recovery of compensatory damages
may be had.®

In Barnes v, Honey Grove Natatoriums, (1921) - Tex. Civ. App..__,228
S.W. 354, it was held that there was sufficient evidence to justify a finding
of contributory negligence, and that a Judgment for the defendant should be
affirmed, in an action for the death of the plaintiff's sixteen-year-old son
in the defendants! swimming pool, which was about 50 feet wide by 100 feet
long, was of concrete, and sloped gradually from one end, at which the water
was only about 18 inches deep, to the other end where it was about 9 feet deep,
wnere there was testimony to the effect that the boy, who was an inexperienced
swimmer, had been told by another boy with whom he spoke about "kind of cramping",
to get out on the bank and wait until he felt differently. The case was treated
=s tho the party who was drowned were an adult, no complaint being made to the
instructions on this ground. The court said that, treating the case as one
in which the ordinary rule with reference to contributory negligence was
applicable, it was plain that the jury were warranted in finding that the
piaintiff's son was guilty of contributory negligence: that they had a right
to conclude that the boy discovered, during the half hour he was in the pool
before he had the conversation in question, that the water thein became gradually
deeper, and knew and realized the danger to a person who was not a good
swimmer, or even to an exvert swimming, in using it after he discovered that
he was cramping; and that the jury might conclude that an ordinarily prudent
person under these circumstances would not have gone back into the pool, as the
youth did after he had the conversation in question. The court expressed the
opinion that a finding that the defendants were guilty of gross negligence
would not have been warranted, where it appeared that they had exercised some
care for the safety of persons who used the pool, by providing handrails
along the end where the water was depest and for a distance of about 40 feet
along the sides from that end and by placing chains across the pool | at points
where the water vas about 2 feet deep and also where it vas about 35 feet deep,
although it did not appear that they had employed attendants charged with the
duty specifically of looking after the safety of persons in the water.

A person constructing a toboggan slide to be used by the public for
@ consideration at a bathing resort is bound to anticipate and provide against
injuries from defects in construction, to the extent thet reasonably prudent men