
    ,John B. Bjnz, as Administrator, etc., Besp’t, v. John H. Starin, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    ¡Negligence—Contributory—Bathing place.
    The plaintiff's intestate made a dive from an elevation of seventeen feet above the hard bottom into water three and one-half feet deep, and his head coming in contact with the hard bottom, he sustained injuries which caused his death. He could have had no misunderstanding as to the depth of the water, for twenty-five or fifty men were there, some of them standing in the water at the depth of the waist. Meld, that he was guilty of contributory negligence.
    Appeal from a judgment entered upon a verdict of a. jury in favor of the plaintiff at the Westchester county circuit and from an order denying a motion for a new trial made upon the judge’s minutes.
    On July 26, 1885, Oscar Hinz, while bathing ac G-len Island was killed while diving from the top of a trapeze structure.
    The trapeze structure was a structure similar to a mason’s-“horse,”and from the top beam depended five ropes, three with rings and two with a bar, all designed to be used as swings by the bathers. The horse was about nine feet high from the surface of the water at high tide and sixteen' at low. It was buried in the sand about ten inches, so as to rest on the rock. On the side legs there were nailed some strips of grooved and tongued board to stiffen'it. The top bar wás a timber 6x6 inches and extended some two and a half feet beyond the sides, and had return diagonal braces running from the outer end to the sides. The lower end of these braces was four feet from the top bar. It was six feet from the lower end of the braces to the upper boards on the sides, making ten feet from the upper strip on the legs to the top beam, and the space between that upper board and the one below was two and a half feet. The ropes were fastened through the top bar by bolts and washers, which projected above the top bar one and a half inches. They covered a space of three and a half feet along the top of the bar. The accident occurred between two and three o’clock p. m. At this time the tide was more than half low, which would make the depth of water about three and a half feet, as the place is bare at low water. At the time of the accident there were about twenty-five bathers, some of whom were standing in the water about the trapeze.
    
      Goodrich, Deady & Goodrich, for app’lt; Martin J. Keogh, for resp’t.
   Pratt, J.

The plaintiff’s intestate made a dive from an elevation of seventeen feet above the hard bottom into water three and one-half feet deep, and his head coming in contact with the hard bottom, he sustained injuries which caused his death. He could have had no misunderstanding as to the depth of water, for twenty-five or fifty men were there, some of them standing in the water at the depth of the waist.

Upon these undisputable facts the question arises whether the recovery in favor of plaintiff can be sustained. The danger of such a plunge would seem to be apparent. If there had been no water there probably a child would have known better than to have made that headlong plunge from an elevation of seventeen feet. How any. man in his senses could imagine three and one-half feet of water could make the performance safe is difficult to understand. .

We are clearly of opinion that the facts show such negligence that a non-suit should have been granted upon that ground.

We are also of opinion that no sufficient evidence of defendant’s negligence was shown to warrant submission of that question to the jury.

The structure from which the intestate plunged was clearly not designed to be used in such a manner. Only an athlete of considerable ability would be able to climb to ,its top.

i Had it been designed as a platform for divers, some ready means of access would have been provided, and it would not have been so narrow at the top that only a person- of profound ability in that direction could keep his balance while upon it. The fact that defendant held out the place as proper for bathers does not show that he guaranteed it safe for people to dive from the structure. We find no evidence that any defect in the bottom caused the injury.

One witness testifies that some days after the accident he found a stone that projected above the sand five inches, but we find no evidence to show that the stone was exposed at the time of the accident.

It does not appear that the action of the tide would wash the sand, and it may well be that the sand was worn away so as to expose the stone after the accident.

Even if the stone was at that time bare of sand, we do not find evidence that the injury was caused by contact with the stone.

It is matter of common knowledge that sand washed by the sea is sufficiently solid to account for the accident in this case.

We find no evidence that defendant failed in any duty that he owed to the bathers, and for this reason, as well as for the reason that intestate was himself guilty of negligence, the judgment must be reversed, new trial ordered, costs to abide event.

Barnard, P. J., concurs; Dykman, J., not sitting.  