Barrett v. City of San Jose

DRAPER, J.

Plaintiff, a minor, brought this action for damages resulting from injuries sustained in an accident which occurred in a swimming pool operated by defendant city in Alum Rock Park, a municipal park. Plaintiff, playing in the

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shallow end of the pool, donned a glass face mask and dove under water. She came up at the foot of the slide just as another youthful patron of the pool came down the slide head first. His head struck hers. The glass of the face mask was shattered and a piece of glass was driven into plaintiff’s eye, necessitating removal of the eye. Jury verdict was in favor of plaintiff, and defendant appeals from judgment entered upon the verdict.

The trial court instructed the jury as to the elements of negligence, and a defendant’s liability therefor, and also as to liability for injury caused by the dangerous or defective condition of public property. (Gov. Code, § 53051.) It then gave a general instruction on the distinction between the governmental and proprietary activities of a municipality, directed the jury to determine whether defendant city acted in its proprietary or its governmental capacity in operating the swimming pool, and instructed:

“If you find that it was operating in its governmental capacity, then the rules pertaining to a dangerous or defective condition of public property are solely applicable. On the other hand, if you find that it was operating in its proprietary capacity the instructions relating to negligence and carelessness have application.”

Whether under a given state of facts an act of a municipality is performed as part of its governmental function is a question of law for the court, and it is error to submit this question to the jury.

(Hanson

v.

City of Los Angeles,

63 Cal.App.2d 426 [147 P.2d 109]; see also

Chafor

v.

City of Long Beach,

174 Cal. 478 [163 P. 670, Ann.Cas. 1918D 106, L.R.A. 1917E