Opinion
October 14, 1947.
Action to recover damages for the wrongful death of plaintiff's intestate, who was drowned in the waters of the Great South Bay in front of a hotel, operated by defendant Walz, at which the intestate was a paying guest. Judgment for said defendant reversed on the law and a new trial granted, with costs to abide the event. The findings of fact implicit in the verdict of the jury are affirmed. Appeal from order dismissed, without costs. The court's instructions to the jury were confusing. After the court had charged that defendant Walz was under a duty to take reasonable care to discover the actual condition of the land under water in the area wherein his guests were invited and permitted to bathe, and either to make the area safe or warn them of its dangerous condition, the court further instructed the jury, without qualification, that said defendant was not required to inspect the bed of the Great South Bay to determine the slope of the ground, its depth, or to determine the presence of any object or condition on the bed of the bay which might be dangerous to bathers. Lewis, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur. [See post, p. 1071.]