
    26021.
    DAY v. TRION COMPANY.
    Decided June 17, 1937.
    
      Maddox & Griffin, for plaintiff.
    
      Maddox, Matthews <&' Owens, for defendant.
   MacIntyre, J.

After testifying, in effect, that the decedent had been in the pool several times before the time he was killed, and that the water was about twenty-two inches deep where he dived in, the only eye-witness to the accident who was sworn testified in part as follows: “We had got some water on that tile, naturally, and that water was perfectly apparent to anybody that looked. I could see it all right, and in walking around on it I could 'feel the water with my bare feet. To anybody walking around there it was perfectly apparent that there was water on that tile. . .. If you put water on this floor it would be slicker than it is now. . . I went to the lower edge and went in, dived in the lower end. He came to the edge and stood on the edge for a few minutes, and then dived in. A person standing there looking down into that water could easily have told the depth of that water, could guess it pretty much, and could see the bottom, and could tell pretty nigh the depth of the water. There was nothing concealed-there. There was nothing in the pool to prevent ascertaining that. It was perfectly clear of all obstructions. It was perfectly clear-; He just stood there poised on the edge like we boys did, and standing there on the edge . . dived in; and that is all he did. I was looking at him when he went in. I didn’t see him slip on the edge of the pool — just dived in naturally like the balance of us did. When he went in I heard something sounded like a gun pop when he hit the water, and I knew he was hurt. The Day boy was a pretty good swimmer . . but wasn’t such a good diver. . . When we went in they had just begun to fill it up. I couldn’t say how long that was’ before . . Day was hurt, but about twenty to thirty minutes. . . It is filled xrp with what . . looks like about a six or eight-inch pipe: . . I saw . . Day when he was hurt. The boy, Tobe Anderson, and I and William and them was diving in there, and he dived in too, and he didn’t ever come up after he hit the water. . . The fresh water that was being put in was perfectly clear. The color of the tile inside the pool was white, but with the white background it wasn’t very hard to distinguish how deep it was along the side. You could tell . . they were filling the pool when we got there, and we didn’t wait around until the pool was filled, but went in there. . . [The water] lacked about eight inches of being the depth of what it ordinarily is.”

The petition is grounded primarily on the theory that the decedent’s death resulted from his slipping on the wet tile floor and falling into tlie pool, while the only eye-witness to the accident testified, in effect, that he did not slip and fall in the pool, but that he came to the edge, stood there “for a few minutes,” poised, and dived in. It thus appears that the proof differs radically from the pleadings as to the way in which the tragedy occurred. The' witness also testified, in effect, that the condition of both the floor surrounding the pool and of the pool itself was plainly visible to any one who might choose to look, and, especially, that one walking on the floor with bare feet, as did the decedent, would have known of its condition. The rules of law applicable to this case were stated in Coffer v. Bradshaw, 46 Ga. App. 143, 149 (167 S. E. 119), as follows: “The duty to keep premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers, traps, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care.” Our view is that the plaintiff not only failed to prove his case as laid, but that the uncontradicted evidence conclusively showed that by the exercise of very slight care the decedent could have avoided the injury. See Lebby v. Atlanta Really Corporation, 25 Ga. App. 369 (103 S. E. 433); Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Walloch v. Heiden, 180 Ark. 844 (22 S. W. 2d. 1020). The court did not err in granting a nonsuit.

Judgment affirmed.

Broyles, C. J., and Guerry, J., concur.  